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TMI Blog2005 (5) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... 19-12-1997. The petitioner carried the matter in appeal before the Commissioner (Appeals), Rajkot who vide Order-in-Appeal No. 1073/2001/ Commr(A)/Raj, dated 29-11-2001 allowed the appeal. Being aggrieved by the order of the Commissioner (Appeals) the Central Excise Department filed an appeal before CESTAT. 3.It is the say of the petitioner that under letter F. No. AR-IV/Sanghani Steel/Rec/04-05 dated 27-10-2004 respondent No. 3 called upon the petitioner to discharge the liability as CESTAT had passed its order dated 5-3-2004 bearing No. C-III/1007/WZB/2004 allowing the departmental appeal. 4.On receipt of the aforesaid letter and copy of the order of CESTAT the petitioner moved an application being Misc. Application seeking restoratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement of the petitioner that it was not in receipt of the notice of hearing issued by CESTAT, CESTAT directed its Registry to verify and report on this aspect of the matter on the next date of hearing viz. 24-2-2005. 7.On 22-2-2005 the Advocate for the petitioner addressed a letter to CESTAT requesting for adjournment on the ground of his illness and in the application it was stated that he was under medical advice not to travel. 8.CESTAT has passed an ex parte order on 24-4-2005 and while doing so has observed as under : "I find that since the restoration application seeks Restoration of Appeal whereas the appeal was filed by the Department and it was allowed in its favour and there is no case for dismissal of the appeal, the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 (the Rules) with special reference to proviso under Rule 20 of the Rules. It was submitted that as rightly held by CESTAT the appeal before the CESTAT was a departmental appeal and the petitioner, as respondent had no right to seek restoration of the appeal which was decided ex parte in absence of the respondent. He therefore submitted that no interference was called for and the petition be rejected. 12.Impugned order dated 24-2-2005 made by CESTAT cannot be permitted to stand for the reasons that follow hereinafter. 13.CESTAT has lost sight of the fact that it was not called upon to hear and decide the Restoration Application simpliciter on the basis of its procedural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he hearing of the appeal or on any other day to which such hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Tribunal may, in its discretion, either dismiss the appeal for default or hear and decide it on merits : Provided that where an appeal has been dismissed for default and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance when the appeal was called on for hearing, the Tribunal shall make an order setting aside the dismissal and restore the appeal. Hearing of appealsRULE 21. ex parte. - Whereon the day fixed for the hearing of the appeal or on any other day to which the hearing is adjourned the appellant appears and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee and the department for the purpose of ascertainment of liability to duty or otherwise under the Act. Any decision which affects the rights of the parties, especially of an assessee, where the assessee is ultimately going to be called upon to pay duty has to take within its fold the principles of natural justice. In other words a party which is liable to be affected by the final outcome is required to be granted an opportunity of proper and reasonable hearing in accordance with law. 17.It is this fundamental principle which forms the basis of Rule 18 of the Rules. The said rule provides for date and place of hearing. Under sub-rule (1) of Rule 18 of the Rules it is provided that CESTAT shall notify the date and place of hearing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances, CESTAT could not have proceeded on the basis of Rule 21 of the Rules because even if the interpretation sought to be placed by CESTAT may be accepted for the sake of argument, it would yet require that the facts and the record establish that notice of hearing envisaged under Rule 18 was duly served on the respondent. Only then and then it could be stated that the respondent had committed a default and was required to bear the consequences by way of appeal being decided ex parte. Therefore, CESTAT was duty bound to await till the verification of its own record was complete. 19Considering the issue from a. slightly different angle it is necessary to take into consideration the provisions of Section 35C(2) of the Act. The said section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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