TMI Blog2009 (6) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... toration application passed by the High Court was set aside by the Honourable Supreme Court and restoration of the second appeal was ordered, petitioner is right in contending that it is entitled to pray for setting aside of the order passed in the appeal and to hear the appeal on merits after hearing the petitioner or its counsel, writ petition is ordered on the above terms - 14836 of 2007 - - - Dated:- 19-6-2009 - N. Paul Vasanthakumar, J. REPRESENTED BY : Shri G.RM. Palaniappan, Counsel, for the Petitioner. Shri K. Ramakrishna Reddy, Standing Counsel, for the Respondent. [Order]. By consent of both sides, the writ petition itself is taken up for final disposal. 2. The prayer in the writ petition is to quash the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Personal hearing was conducted on 8-10-1997 and at that time also the petitioner contended that the products are excisable as the labels had colour combination decorative with logo and exported under brand under cover of AR.4 Therefore the modvat credit availed on the inputs used in the manufacture of exported products is in order. However, the third respondent confirmed the demands as per the show cause notices and a common order was passed on 27-2-1998 disallowing the modvat credit given to the petitioner, a sum of Rs. 72,582; Rs. 1,59,326; and Rs. 46,799 and also imposed a penalty of Rs. 25,000 under Rule 57-I of the Central Excise Rules, 1944, read with Section 11-A of the Central Excise Act, 1944. Having aggrieved, the petitioner pref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile an appeal to the appellate Court. Against the said order this writ petition is filed contending that the appeal having been dismissed without hearing the petitioner, the principles of natural justice is violated. 5. The learned counsel for the petitioner submitted that the petitioner is entitled to be heard and the restoration application filed to set aside the order and for praying to hear the appeal and pass orders on merits is bound to be allowed in view of the decision of the Supreme Court reported in 1996 (86) E.L.T. 471 : (1996) 6 SCC 92 (J.K. Synthetics Ltd. v. Collector of Central Excise), wherein the Honourable Supreme Court held that ex parte dismissal of appeal on merits by the Appellate Tribunal can be restored when there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal was not intimated to the petitioner. In the order passed by the first respondent in the appeal, it is stated that there is no representation for the appellant despite notice nor there was any request for adjournment. It is the specific case of the petitioner that no notice was issued or served to the petitioner with regard to the hearing date of the appeal. In the order passed in the appeal, the date of notice issued nor the service of any notice to the petitioner is mentioned. Hence the contention of the petitioner that no notice of hearing date of the appeal was either issued or served to the petitioner is to be accepted. The right of hearing before the statutory authority is a valuable right given to the appellant, which cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposed of ex parte can be set aside on sufficient cause for the absence of the respondent being shown does not mean the CEGAT has no power to do so. Rule 41 gives CEGAT wide powers to make such orders or give such directions as might be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or, most importantly, to secure the ends of justice. 6. It, in a given case, it is established that the respondent was unable to appear before it for no fault of his own, the ends of justice would clearly require that the ex parte order against him should be set aside. Not to do so on the ground of lack of power would be manifest injustice. Quite apart from the inherent power that every Tribunal and cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the appeal on merits, the facts remains, the disposal was made without hearing the petitioner. In such circumstances, whether the petitioner is entitled to file an application for setting aside the order and restore the appeal was recently considered by the Honourable Supreme Court in the decision reported in (2007) 3 MLJ 839 (SC) (Sarwan Singh v. Kishan Singh). In the said judgment it is held that merely because of the fact that the appeal was dismissed on merits could not be a ground to refuse restoration. The dismissed of the restoration application passed by the High Court was set aside by the Honourable Supreme Court and restoration of the second appeal was ordered. 13. Following the above referred decisions of the Honourable Su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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