TMI Blog1989 (4) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant viz. the Collector of Customs, Madras, disposed of the appeals on merits. The petitioner herein aggrieved by the said order of the Tribunal has filed the present application seeking to recall the order of the Tribunal. 3. Shri Habibullah Badsha, the Learned Senior Counsel for the petitioner, submitted that though the petitioner herein had received the hearing notice and had not asked specifically for an adjournment inasmuch as he had sent a communication to the Registry dated. 16-3-88 seeking for a copy of the appeal petition, the Tribunal could have adjourned the appeal and afforded the petitioner herein an opportunity of being heard. 4. The learned senior counsel further submitted that though the Tribunal had disposed of the appeal on merits the Tribunal would be well within its jurisdiction in setting aside that order and reposting the appeals for disposal on merits in terms of Rule 41 of the CEGAT (Procedure) Rules, 1982 to secure the ends of justice. The learned counsel placed reliance on the ruling of the Supreme Court in the case of Income-tax Officer, Cannanore v. M.K. MohammedKunhi, reported in 1969 (71) I.T.R. 815. The learned senior counsel also placed rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d are not denied. On the date when the appeals were taken up for hearing on 12-4-1988 the Respondent in the Appeal did not appear nor admittedly seek any adjournment either. In such circumstances the Tribunal heard the appeals and disposed them on merits. If the petitioner really had not received copy of the appeal petition, we are at a loss to understand as to why he did not make any grievance at all about it for the period of about 5 months. No arguments were advanced in this regard. Apart from it, no submission was also made as to why the petitioner did not admittedly seek for an adjournment of the hearing on 12-4-1988 if he was really handicapped by the alleged non-receipt of a copy of the appeal petition filed by the Collector of Customs, Madras. The records in the registry clearly show and establish that the copy of the appeal petition had been sent by registered post acknowledgement due on 19-10-1987 itself. In these circumstances there is absolutely no justification at all for the petitioner to contend that there was violation of natural justice in respect of the order passed by the Tribunal on 12-4-1988 under Order No. 205/1988. 7. The substance of the plea of the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel for the petitioner also did not dispute the legal proposition before us that the power of review is not available under the Act to the Tribunal nor is there any inherent power for a creature of a statute like Tribunal clothing it with any power of review. The Tribunal rules also have not vested the Tribunal with any power of review. 8. The reference by the learned counsel for the petitioner to the ruling of the Supreme Court in the case of Income-tax Officer, Cannanore v. M.K. Mohammed Kunhi, referred to above, has no relevance or application to the facts and circumstances of this case. In Mohammed Kunhi s case the Supreme Court was merely called upon to pronounce on the scope of Section 254 of the Income-tax Act, 1961, particularly with reference to the fact as to whether the power to entertain appeal carries with it the duty in proper cases to make such orders for staying the recovery proceedings pending disposal of the appeal. The ratio of the decision of the Supreme Court is that the power to entertain an appeal would include the power to grant stay though there may not be a specific provision for the grant of stay during the pendency of an appeal. It was held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arty, even assuming that the Tribunal had committed an irregularity, a technical error in doing so, this court will be slow to exercise the extraordinary power under Article 226 of the Constitution to perpetuate an injustice. As we have already held, in the present case admittedly the petitioner was served with a notice well in advance and the petitioner did not appear for the hearing nor seek any adjournment and absolutely no explanation was also given for the petitioner s absence during the hearing. Therefore, the petitioner cannot with any justification complain either want of opportunity or breach of natural justice. If it should be held, as contended by the learned counsel for the petitioner, that the order passed by the Tribunal on merits ex parte should be set aside, even if the party has not sought for an adjournment nor was in any way disabled from participation in the proceedings; it would lead to abuse of process of court and put a premium on the latches of a party. We, therefore, cannot countenance such an argument. If a party after due notice and opportunity chooses to absent himself without even so much asking for an adjournment and does not even have any justifiable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat" a decision reached behind the back of a necessary party to whom notice must be sent is not binding upon such a party, and the court may in such a case reopen the proceedings to have the party an opportunity to state its case". No doubt that was a case in which notice to the necessary party was not served unlike in the present case in which admittedly notice was served on the petitioner. 9. Apart from all other things, even in the impugned order the Tribunal has only set aside the order of adjudication appealed against by the Collector of Customs, Madras, and remanded the matter. The Tribunal in the impugned order has held that the impugned order is set aside and the appeals are remanded to the Collector of Customs, Madras, for deciding the issue de novo relating to the quantum of fine in lieu of confiscation of the imported goods. We also leave open the question of personal penalty with a direction that this issue also be decided afresh by the Collector after giving the respondents an opportunity of hearing and in accordance with law. The petitioner herein can by no stretch of imagination contend to be aggrieved by the above order of remand, since the issue is now at large ..... X X X X Extracts X X X X X X X X Extracts X X X X
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