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TMI Blog2010 (9) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondents on 25th May, 2010 was due to the circumstances mentioned in the said application was not brought to the notice of the Bench and, therefore, there is a justifiable cause for recall of the said order. 4. Perusal of the application does not disclose any other ground for recall of the final order passed on 25th May, 2010. In the circumstances, therefore, when the advocate for the respondents was asked, as to whether there was any ground on merits to assail the order dated 25th May, 2010, he submitted that, though the respondents have no case on merits, the fact that there was no suppression, as such, on the part of the respondents and on that ground there was no justification for invocation of extended period of limitation was not considered by the Tribunal nor the Tribunal had occasion to deal with the same as the same was not brought to the notice of the Tribunal and though on restoration of the appeal even the said order could be confirmed on merits, the matter will have to be remanded to the Commissioner (Appeals) to deal with the aspect on the point of limitation which the respondents would be able to canvass on restoration of the appeal. 5. As rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Application being Application No. 494 of 2009 for recall of the said order. In those circumstances, without considering the Misc. Application No. 494 of 2009 the Tribunal could not have disposed of the appeal on 25th May, 2010. 6. The Departmental Representative, on the other hand, submitted that, the appeal was sought to be adjourned on number of occasions by the respondents and in those circumstances when the matter came up for hearing on 25th May, 2010, in the absence of the respondents and their advocate without any sufficient cause being disclosed for the same, the Tribunal disposed of the same on merits and therefore there is no case for recall of the said order. 7. Perusal of the application, undoubtedly, discloses that, the sole ground on which the same has been filed is that, the respondents on 24th May, 2010 had submitted a letter to the registry seeking adjournment of the hearing on 25th May, 2010 due to the non-availability of the advocate on that day. The application does not disclose any copy of the alleged letter dated 24th May, 2010- The application was filed with the registry on 26th July, 2010. However, in the course of the arguments, the learned advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the presentation of such application in the registry on 24th May, 2010. It is not known as to why the same was not disclosed in the application and why the respondents had to wait till the date of today's hearing to contend that the proof thereof could be verified from the inward register by verifying whether the same was entered at Serial No. 186 on 24th May, 2010 or not. Be that as it may, the ground disclosed in the letter is that, the advocate for the respondents was unwell and, therefore, could not attend the hearing on 25th May, 2010. It is to be noted that the letter was not under the signature of the advocate. It was sent by the party. In those circumstances, in the absence of any proof about the sickness of the advocate merely on statement of the party, even if the application was presented before the Tribunal on the very day, it could have been rejected for want of proof relating to the contents of the said application. There is yet another reason, as rightly pointed out by the Departmental Representative, that though in some matters the Tribunal might have acted upon the letters sent on behalf of the advocate for the assessee for adjournment, the requirement of law is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the order. Even assuming that the letter was placed before the Bench, it was certainly in the discretion of the Bench either to accept or reject the said letter and/or to adjourn the matter. As already observed above the letter was sent by the party and not by the advocate. There was no proof along with the letter about the sickness of the advocate. The contention of the learned advocate that he is making a statement today that he was sick on that particular day would not make any difference in the absence of proof of his sickness on 25th May, 2010 when the matter was heard and decided. We will have to see the matter in the context of the day on which the matter was taken up for hearing i.e. 25th May, 2010 and not what is claimed by or on behalf of the party today. Secondly, the points as to whether the advocate for the party was sick on a particular day and that, therefore, the party could not secure the presence of his advocate before the Tribunal are the questions of fact and need to be proved by the party by placing on record cogent materials in support of its contention in that regard. If the Tribunal allowed the statement of fact by the advocate for the party to be substitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondents addressed to the Tribunal on the letterhead of the respondents. The said letter reads thus : "IVT/09/10 DATE : 22/10/09 TO, ASSISTANT REGISTRAR CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WTC 1ST FLOOR, FKCCI COMPLEX, KEMPEGOWDA ROAD BANGALORE-560009 Dear Sir, SUB : Your letter dated 8-10-09 REF : Misc. Order No. 527/2009 With reference to the above please note, we are in receipt of your letter on 22-10-09 morning. It is not possible for us to attend the Personal Hearing on 23-10-09 with such a short notice. Hence we request you to adjourn the P.H. and offer us suitable date to do the needful. We are also sorry to inform you that we did not receive any intimation letter for the Personal Hearing held on 7-10-09. Thanking you, Yours Truly, For Indo Vacuum Technologies Pvt. Ltd. (Erstwhile Indo Woo sung Vacuum Co. Pvt. Ltd.) Sd/- Authorised Signatory" 12. The said letter clearly discloses that the respondents were fully aware of the Misc. Order No. 527/2009 which was passed on 7-10-2009. It also discloses that the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alysis of the material on record has arrived at the finding that the respondents could not bring anything on record which could reveal that the department had prior knowledge of use of brand name of another person by the respondents for the product manufactured by them. The said finding of fact has not been interfered with by the Commissioner (Appeals). Perusal of the records also do not disclose any justification for interference in the said finding. We are referring to this aspect because the respondents are not represented before us. The respondents have also not filed any cross objections. In the circumstances though we are not required to go into the said issue, since the respondents are not represented before us, we have also considered the said aspect of the matter. 26. Considering the view that we are taking in the matter, it is also not necessary to refer to other judgments relied upon by the learned DR though all those judgments squarely apply to the facts of the case in hand and support the contentions raised on behalf of the appellants." 15. The contention of the learned advocate for the respondents, however, is that, the fact that there was no suppression i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to deal with all these aspects. The issue of limitation is never a pure question of law, but always a mixed question of law and facts. It is essentially for the Court of facts to analyse the facts in relation to any issue of fact or mixed question of law and fact. If the issue regarding limitation is raised before the Tribunal, it is not necessary for the Tribunal to remand the matter to the Commissioner (Appeals) or to the adjudicating authority and the Tribunal itself is fully empowered to decide such issue. As already observed above in para 25 of the order dated 25th May, 2010, the Tribunal has duly considered the said issue. Very fact that the respondents had not been able to produce any evidence about the knowledge of the Department about the activities of the respondents which could have revealed any of the violation of the provisions of law, itself discloses the suppression of the fact and the same has been duly considered in the said order. 17. It was also sought to be contended on behalf of the respondents that in the Revenue's appeal there was no contention regarding the bar of limitation raised, neither there was any grievance about failure of the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to the notice of the Tribunal and though on restoration of the appeal even the said order could be confirmed on merits, the matter will have to be remanded to the Commissioner (Appeals) to deal with the aspect on the point of limitation which the respondents would be able to canvass on restoration of the appeal. 5. As regards the application dated 24th May, 2010, to the specific query, that whether an adjournment could be sought by merely sending application to the registry either by post or fax, the learned advocate submitted that, the same practice had been followed earlier and, therefore, there was nothing unusual for the respondents to seek adjournment by sending the letter dated 24th May, 2010. As regards the justification for the absence of the advocate on 25th May, 2010, he submitted that, on that particular day he was not well and was treated by his own daughter who is a medical practitioner and even though the letter was not accompanied by any proof of his sickness, the very fact that today he is making the said statement about his sickness, being an advocate and therefore officer of the Court, should be accepted as the proof for his absence on that day. Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the registry seeking adjournment of the hearing on 25th May, 2010 due to the non-availability of the advocate on that day. The application does not disclose any copy of the alleged letter dated 24th May, 2010- The application was filed with the registry on 26th July, 2010. However, in the course of the arguments, the learned advocate for the respondents has place on record a copy of the letter dated 24th May, 2010 stating that the fact that such letter was entered in the inward register of the registry on 24th May, 2010 at Serial No. 186 can be very well verified from the records. The copy of the said letter which was submitted for our perusal reads thus : "IVT/01/10-11 DATE : 24-5-10 To, ASSISTANT REGISTRAR CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL BANGALORE-560009 Dear Sir, SUB : Personal Hearing on 25-5-10 REF : Excise-E/01/07 We are in receipt of your Letter dated.- 5-5-10. We are sorry to inform you that, our Advocate Mr. P.D. Shah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en rejected for want of proof relating to the contents of the said application. There is yet another reason, as rightly pointed out by the Departmental Representative, that though in some matters the Tribunal might have acted upon the letters sent on behalf of the advocate for the assessee for adjournment, the requirement of law is that, such an application should be presented in the open Court by somebody on behalf of the assessee. Letter, if any, should be sent well in advance to the Registry so that necessary intimation in that regard can be made to the other side as also the same can be placed before the Bench in time. The learned advocate in this regard has submitted that, even on earlier occasion, in the very case, the Tribunal had accepted such letters. In that regard, attention was also been drawn to the decision of the Delhi High Court. Assuming that the Tribunal had acted upon any such letter and assuming that it was the practice followed, merely because a wrong practice is followed, it cannot acquire any right in favour of the party to insist that the Tribunal should continue to follow the wrong practice. The decision of the Delhi High Court in S.K. Gupta's case (surpa) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay and that, therefore, the party could not secure the presence of his advocate before the Tribunal are the questions of fact and need to be proved by the party by placing on record cogent materials in support of its contention in that regard. If the Tribunal allowed the statement of fact by the advocate for the party to be substitute for such evidence, it will amount to accepting the said statement of the advocate in his capacity as the witness for the party. No advocate for the party is entitled to be witness for the party in support of his client's case. 9. As regards the contention that under no circumstances the Tribunal could have disposed of the matter on 25th May, 2010 in view of the pendency of the Misc. Application No. 494 of 2009, it is pertinent to note that from the very copy of the application that is made available to us, it is apparent that the Misc. Application No. 494 of 2009 had been filed for recall of the order dated 8th October, 2009. In fact, there was no order passed on 8th October, 2009. The order which was passed was on 7th October 2009 in ROA Application No. 04 of 2009 and it was a Misc. Order which reads thus : "The respondents are not present. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10-09. Thanking you, Yours Truly, For Indo Vacuum Technologies Pvt. Ltd. (Erstwhile Indo Woo sung Vacuum Co. Pvt. Ltd.) Sd/- Authorised Signatory" 12. The said letter clearly discloses that the respondents were fully aware of the Misc. Order No. 527/2009 which was passed on 7-10-2009. It also discloses that the respondents were fully aware that ROA Application No. 04 of 2009 was not disposed of even on 23rd October, 2009 and the hearing in that regard was fixed on 26th October, 2009 and, therefore, had sought adjournment of the same. However, the same was not allowed and the Tribunal ultimately disposed of ROA Application No. 04 of 2009 by order dated 26th October, 2009 whereby restoration of the appear was allowed. Being so, the contention that in view of the pendency of the Misc. Application No. 494 of 2009, the Tribunal could not have disposed of the appeal on 25th May, 2009 is totally devoid of substance, firstly, because Misc. Application No. 494 of 2009 was not in relation to the order dated 26th October, 2009 under which the appeal has been restored, and secondly, the Misc. Application No. 494 of 2009 related to order dated 8th October, 2009 which was, in fact, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to refer to other judgments relied upon by the learned DR though all those judgments squarely apply to the facts of the case in hand and support the contentions raised on behalf of the appellants." 15. The contention of the learned advocate for the respondents, however, is that, the fact that there was no suppression in view of the divergent views expressed on the main issue by the different Benches of the Tribunal was not considered and considering the same, it is necessary to direct the Commissioner (Appeals) to decide the said issue and particularly whether there was intentional suppression of any fact or not. In that regard, attention was also drawn to the decision of the Supreme Court in the matter of Bhalla Enterprises (supra) and particularly to paras 7 to 9 thereof. The same read as under : "7. The decision in Rukhmani Pakkwell Traders (supra) and Mahaan Dairies (supra) set aside the decision of the Tribunal holding to the contrary in the matter of Fine Industries reported in 2002 (146) E.L.T. 53. In the appeals which are being disposed of by us the decision in Fine Industries has been followed by the Tribunal and relief has been granted to the assessee's con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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