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2021 (3) TMI 568 - HC - Central ExciseRejection of restoration application - recall of order would amount to review - rejection on the ground that recall of the earlier order would result in review of its order and that the Tribunal is not vested with such power under the statute - HELD THAT:- It appears from the record that the appeal in question was listed for hearing for the first time before the learned Tribunal on 08.09.2017. The hearing was, thereafter, adjourned to 13.10.2017. In the meantime, the petitioner made an application before the learned Tribunal on 09.10.2017 requesting to postpone the hearing of the appeal to 03.11.2017 on the ground that the petitioner wanted to rely upon certain documents. However, it appears that no orders were passed by the learned Tribunal on the said application dated 09.10.2017 preferred by the petitioner, much less any reasons rejecting the said application. In other words, the application dated 09.10.2017 preferred by the petitioner has remained undecided. The petitioner had a sufficient cause for seeking postponement of the hearing from 13.10.2017. In our opinion, the said request for adjournment made by the petitioner was reasonable. But, the fact remains that the learned Tribunal has not passed any order either allowing or rejecting the application seeking adjournment and has also proceeded to decide the appeal ex-parte on merits while keeping its hand-off from the adjournment application. The Code of Civil Procedure does recognize the right of the appellant-petitioner to get his appeal decided on merits. In the present case, it is an admitted fact that the appeal preferred by the petitioner has been decided ex-parte and an application seeking adjournment of the hearing of appeal had been filed by the petitioner much prior to the next date of listing of the appeal, which has remained undecided. By filing the restoration application, the petitioner had sought for recall of the order passed in appeal by contending that all facts relevant for the proper adjudication of the case had not been placed on record of the appeal. However, the said application also came to be rejected by the learned Tribunal by holding that the issue involved has been decided on merits and that the recall of the order and its substitution with a different view, would result into review of its own order, which power is not vested with the Tribunal under the statute. In the present case, on the date so fixed for hearing, i.e. on 13.10.2017, the learned Tribunal ought not to have decided the appeal itself on merits in the absence of the petitioner or its representative, particularly, when the petitioner had already submitted an application seeking adjournment much prior to the date so fixed for hearing disclosing the cause for remaining absent - the impugned orders passed by the learned Tribunal could not be sustained in the eyes of law and they deserve to be quashed and set aside. Petition allowed.
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