2011 (1) TMI 924 - HC - Central Excise

Whether the Tribunal is legally correct in restoring the appeal of the respondent to its original number beyond six months - contention raised on behalf of the appellant is that the Tribunal could not have restored the appeal after expiry of six month from the date of dismissal of the appeal for non-prosecution. In the impugned order no such objection appears to have been raised on behalf of the appellant before the Tribunal in absence of which the plea cannot be raised for the first time before this Court appellant is unable to give the date on which the application was filed and the date on which the fact of dismissal of appeal for non-prosecution came to the notice of the assessee. Since huge amount was involved the Tribunal having been satisfied about the bona fides for the non-appearance of the assessee there is no ground to interfere. No substantial question of law arises the appeal is dismissed.

Summary

Issues:
1. Restoration of appeal beyond six months under Section 35G of the Central Excise Act, 1944.
2. Tribunal's power to recall its own order under Central Excise law.

Analysis:

Issue 1: Restoration of appeal beyond six months
The appellant filed an appeal under Section 35G of the Central Excise Act, 1944 against an order passed by the Customs, Excise & Service Tax Appellate Tribunal, seeking to challenge the restoration of the respondent's appeal beyond six months. The respondent-assessee had initially filed an appeal against a penalty exceeding Rs. 96 lacs, which was dismissed for non-prosecution. However, the Tribunal, upon receiving an application for restoration citing misunderstanding as the reason for non-appearance, allowed the appeal to be restored for hearing. The appellant contended that the Tribunal lacked the authority to restore the appeal after the six-month period following its dismissal. The High Court noted that the appellant had not raised this objection before the Tribunal, and without providing the date of application filing or the date of notice of dismissal, the plea could not be entertained for the first time before the Court. Given the substantial amount involved and the Tribunal's satisfaction with the reasons for non-appearance, the Court found no grounds for interference, concluding that no substantial question of law arose in this regard.

Issue 2: Tribunal's power to recall its own order
The second issue raised was whether the Tribunal had the authority to recall its own order under the provisions of Central Excise law. The High Court's analysis primarily focused on the specific circumstances of the case, wherein the Tribunal had restored the appeal for hearing based on the respondent's explanation of misunderstanding leading to non-appearance. The Court did not delve deeply into the general power of the Tribunal to recall its orders under Central Excise law but rather emphasized the lack of objection raised by the appellant before the Tribunal regarding the restoration beyond the six-month period. Consequently, the Court dismissed the appeal, indicating that the Tribunal's decision to recall the order was justified in this instance based on the circumstances presented and the absence of timely objections from the appellant.