9911796707
TMI Blog2020 (11) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... s as follows :- "Today the case was fixed for hearing but none is present on behalf of the appellant. A letter has been received from the appellants stating that they had filed an application for recalling the ex parte stay order dated 2-2-2016. In the letter the appellants have also mentioned that his miscellaneous application for setting aside the ex parte order should be taken up for hearing first. 2. On the other hand the learned AR submitted that vide Order dated 2-2-2016, the CESTAT after considering the submissions in the memo of appeal and also going through the impugned order came to the conclusion that there is no prima facie case in favour of the appellants to allow the stay petition unconditionally. The Bench accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d search and seizure in the petitioner's premises on 3-4-2007 and 5-4-2007. The third respondent has not accorded any opportunity to the petitioner to cross-examine the officers despite repeated representations and requests made by the petitioner during the pendency of the proceedings. 3. The petitioner therefore, filed the appeal before the CESTAT. One of the chief grounds urged in the appeal is that the third respondent ought to have extended an opportunity to the petitioner to cross-examine the officers who allegedly conducted search and seizure proceedings on the aforesaid two dates, and the third respondent's failure to extend such opportunity renders the original order dated 15-4-2013 impermissible in law. 4. The petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner canvasses two-fold submissions in support of the petition. Firstly, the CESTAT ought to have extended another opportunity for the petitioner to make submissions in support of the application filed for recall of the order dated 2-2-2016 in the light of the memo filed on 17-10-2016 and the Learned Counsel's failure to appear on behalf of the petitioner even on the previous date viz., 2-2-2016. Secondly, it is settled law that the CESTAT could not have disposed of the appeal for default in view of the provisions of Section 129B of the Customs Act, 1962 (for short, 'the Customs Act'). 7. The Learned Counsel submits that the provisions of Section 129B of the Customs Act enjoins the CESTAT to decide an appeal only on merits for eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alaji Steel Re-rolling Mills (supra) would apply to the facts and circumstances of the case. 9. The Hon'ble Supreme Court in the aforesaid decision referring to its earlier decision in the Commissioner of Income Tax, v. S. Chenniappa Mudaliar, Madurai [1969 (1) SCC PAGE 591] has declared as follows :- "13. Applying the principles laid down in the aforesaid case to the facts of the present case, as the two provisions are similar, we are of the considered opinion that the CESTAT could not have dismissed the appeal filed by the appellant for want of prosecution and it ought to have decided the appeal on merits even if the appellant or its counsel was not present when the appeal was taken up for hearing. The High Court also erred i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judication for over 12 years, it would be appropriate to request the CESTAT to expedite final disposal of the appeal on merits. Hence, the following :
ORDER
(a) The writ petition is partly allowed and the CESTAT's impugned order dated 18-10-2016 in Appeal Nos. E/27220/2013-DB, E/27221/2013-DB, E/27222/2013-DB, E/27223/2013-DB, E/27224/ 2013-DB is setaside and the appeal is restored for reconsideration on merits.
(b) The application filed by the petitioner under Rule 41 of the CESTAT Rules for recall of the order dated 2-2-2016 is also restored for consideration on merits.
(c) The CESTAT is requested to expedite the disposal of the appeal on merits. X X X X Extracts X X X X X X X X Extracts X X X X
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