2025 (7) TMI 637 - AT - Service Tax

Abatement of appeal - non-prosecution of the case - non-appearance of appellant when the appeal was called for hearing - Rule 20 of CESTAT (Procedure) Rules 1982 - HELD THAT - The Hon ble Apex Court in the case of Ishwarlal Mali Rathod vs Gopal Others 2021 (9) TMI 1301 - SUPREME COURT while condemning the practice of seeking repeated adjournments has observed that The resultant effect would be that such a litigant would lose confidence in the justice delivery system and instead of filing civil suit and following the law he may adopt the other mode which has no backing of law and ultimately it affects the rule of law. Therefore the court shall be very slow in granting adjournments and as observed hereinabove they shall not grant repeated adjournments in routine manner. Time has now come to change the work culture and get out of the adjournment culture so that confidence and trust put by the litigants in the Justice delivery system is not shaken and Rule of Law is maintained. The Division Bench of the Hon ble Supreme Court in Benny D Souza Ors vs Melwin D Souza Ors 2023 (11) TMI 1309 - SC ORDER heard an appeal wherein the major contention of the appellant was that the High Court should have dismissed the appeal for non-prosecution in terms of the order XLI Rule 17 CPC and particularly the Explanation thereto instead of dismissing the appeal on merits. Rule 20 provides that if the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance when the appeal was called for hearing can set aside the dismissal and restore the appeal. Hence an opportunity for the appellant to restore the appeal and be heard on merits if sufficient cause is shown for his non-appearance remains. Considering the statutory position and the views expressed by the Hon ble Apex Court in the judgments cited above adjournments can t be given for the mere asking without any serious reason without being backed with proof for the non-appearance of the Appellant or his authorised representative on the dates of public hearing. Thus no purpose would currently be served in continuing with this appeal and hence reject the same for default as per Rule 20 of CESTAT (Procedure) Rules 1982. Appeal disposed off.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Tribunal in this appeal are:

• Whether the appeal can be dismissed for default due to non-appearance of the appellant or their representative on the date fixed for hearing.
• The extent and limits of the Tribunal's discretion under Rule 20 of the CESTAT (Procedure) Rules, 1982, to dismiss an appeal for default or hear it on merits.
• The applicability and interpretation of Order XLI Rule 17 of the Civil Procedure Code (CPC) and its Explanation concerning dismissal of appeals for non-prosecution, particularly whether dismissal for default equates to dismissal on merits.
• The propriety of granting repeated adjournments and the judicial stance on dilatory tactics in litigation.
• The procedural safeguards available to an appellant to restore a dismissed appeal upon showing sufficient cause for non-appearance.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Dismissal of appeal for default due to non-appearance

Relevant legal framework and precedents: The Tribunal relied on Rule 20 of the CESTAT (Procedure) Rules, 1982, which empowers the Tribunal to dismiss an appeal for default if the appellant does not appear on the hearing date or adjourned date. The Rule also provides that if the appellant subsequently appears and shows sufficient cause for non-appearance, the dismissal can be set aside and the appeal restored.

Additionally, the Tribunal examined Order XLI Rule 17 of the CPC, which states that if the appellant does not appear when the appeal is called for hearing, the Court may dismiss the appeal. However, the Explanation clarifies that such dismissal is for non-prosecution and not on merits.

Precedents cited include the Supreme Court's decisions in Ishwarlal Mali Rathod vs Gopal & Others and Benny D'Souza & Ors vs Melwin D'Souza & Ors, which emphasize the distinction between dismissal for default and dismissal on merits, and caution against routine adjournments.

Court's interpretation and reasoning: The Tribunal noted that the appellant failed to appear on multiple occasions, including the last two hearings, indicating a lack of interest in pursuing the appeal. It emphasized that mere requests for adjournments without serious reasons or proof are not to be entertained routinely.

The Tribunal observed that the statutory provisions and judicial pronouncements collectively empower it to dismiss appeals for default but also require it to provide an opportunity to restore the appeal if sufficient cause is shown later.

Key evidence and findings: The appellant was absent without representation on the hearing date, and had previously sought numerous adjournments without adequate justification.

Application of law to facts: Applying Rule 20 of CESTAT Rules and the principles laid down by the Supreme Court, the Tribunal exercised its discretion to dismiss the appeal for default, as the appellant failed to prosecute the appeal diligently.

Treatment of competing arguments: Although no arguments were presented on behalf of the appellant due to non-appearance, the Tribunal addressed the general principle that dismissal for default is not dismissal on merits, and that restoration remains possible if sufficient cause is shown subsequently.

Conclusions: The appeal was dismissed for default under Rule 20, with the possibility of restoration if the appellant later demonstrates sufficient cause for absence.

Issue 2: Judicial stance on repeated adjournments and delay tactics

Relevant legal framework and precedents: The Tribunal referred extensively to the Supreme Court's observations in Ishwarlal Mali Rathod vs Gopal & Others, which condemned the practice of seeking repeated adjournments as a cause of delay that undermines access to justice and shakes litigants' confidence in the judicial system.

Court's interpretation and reasoning: The Tribunal reiterated the Supreme Court's view that courts must resist routine and mechanical grant of adjournments, and must act diligently to ensure timely justice. It highlighted that delay caused by unnecessary adjournments can lead litigants to lose faith in legal remedies and potentially resort to unlawful means.

Key evidence and findings: The appellant's prior conduct of seeking adjournments on multiple occasions without adequate justification was noted as a classic example of dilatory tactics.

Application of law to facts: The Tribunal found no purpose in continuing the appeal given the appellant's non-appearance and past conduct. It emphasized the need to discourage adjournment culture to maintain the rule of law and litigants' trust in the justice system.

Treatment of competing arguments: The Tribunal acknowledged that refusal to grant adjournments may be unpopular with the Bar but stressed that judicial officers must prioritize timely justice over convenience.

Conclusions: The Tribunal upheld the principle that repeated adjournments without serious cause must be discouraged and that appeals should not be allowed to linger indefinitely due to dilatory tactics.

Issue 3: Interpretation of Order XLI Rule 17 CPC and its Explanation

Relevant legal framework and precedents: Order XLI Rule 17 CPC allows dismissal of appeals for non-appearance but the Explanation clarifies that such dismissal is not on merits. The Tribunal also cited Supreme Court rulings that have interpreted this provision strictly to protect appellants from losing their substantive rights merely due to procedural defaults.

Court's interpretation and reasoning: The Tribunal acknowledged that dismissal for default under CPC is procedural and does not preclude the appellant from seeking restoration of the appeal upon showing sufficient cause.

Key evidence and findings: The appellant had not appeared on the hearing date, thus triggering the applicability of Rule 17 CPC and Rule 20 CESTAT Rules.

Application of law to facts: The Tribunal applied these provisions to dismiss the appeal for default but noted that the appellant retains the right to move for restoration with sufficient cause.

Treatment of competing arguments: No competing arguments were presented due to appellant's absence, but the Tribunal carefully balanced the procedural safeguards with the need to prevent abuse of process.

Conclusions: The Tribunal's dismissal was procedural, not on merits, preserving the appellant's right to seek restoration.

3. SIGNIFICANT HOLDINGS

The Tribunal's key legal determinations include:

• "Considering the statutory position and the views expressed by the Hon'ble Apex Court in the judgments cited above, adjournments can't be given for the mere asking without any serious reason, without being backed with proof, for the non-appearance of the Appellant or his authorised representative on the dates of public hearing."
• "We find that no purpose would currently be served in continuing with this appeal and hence reject the same for default as per Rule 20 of CESTAT (Procedure) Rules, 1982."
• The Tribunal underscored the principle that dismissal for default under Order XLI Rule 17 CPC and Rule 20 CESTAT Rules is procedural and not on merits, preserving the appellant's right to restore the appeal upon showing sufficient cause.
• It reaffirmed the Supreme Court's stance that the judiciary must resist adjournment culture and dilatory tactics to maintain faith in the justice delivery system and uphold the rule of law.

In conclusion, the Tribunal exercised its discretion to dismiss the appeal for default due to the appellant's repeated non-appearance and failure to prosecute the appeal diligently. It emphasized the importance of timely justice, discouraged routine adjournments, and preserved procedural safeguards for restoration of appeals where justified.