TMI Blog2015 (8) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... nal and not before the Member (Technical) of the Tribunal. The Member(Technical) of the Tribunal ought not to have proceeded with the matter in absence of the petitioner and ought not to have decided the same, which is, in our opinion, contrary to the decisions of the Hon'ble Apex Court in case of Automotive Manufacturers Association V. Designated Authority and Ors. reported in [2011 (1) TMI 7 - SUPREME COURT OF INDIA] and in the case of Union of India & Ors. V. Shiv Raj & Ors. reported in [2014 (5) TMI 1036 - Supreme Court Of India]. The Member (Judicial) of the Tribunal was the best person to decide the matter only after getting some clarification, which he intended to get from the either party as he had put remarks on 25.10.2013. - order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise, Ahmedabad III has been quashed and set aside and the appeal is allowed in favour of the respondent revenue. The petitioner has requested the Court to exercise its extra ordinary power under Article 226 of the Constitution of Indiamainly on the two grounds, which are as under. (i) Though, the matter was heard and was kept for order, the same was again taken up for hearing and was decided in absence of the petitioner (original respondent No.1) (ii) The matter was heard by the Member (Judicial) of the Tribunal, however, the decision has been delivered by the Member (Technical) of the Tribunal, who had never dealt with the case in past. 5. The brief facts arise from the record are as under: 5.1. That the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavit-in-re-joinder has been filed by the petitioner. 7. Mr. Dhaval Shah, learned advocate for the petitioner would submit that though the matter was heard by the Member (Judicial) of the Tribunal, the matter was again listed before the Member (Technical) of the Tribunal on 07.3.2014, of which the petitioner was not aware about the date of hearing and therefore, the matter was heard ex-parte and the decision was rendered on 11.04.2015 by the Member (Technical) of the Tribunal. He, therefore, would submit that the order impugned passed by the Member (Technical) of the Tribunal is required to be quashed and set aside. 8. Learned advocate for the petitioner would further submit that matter was heard by the Member (Judicial) of the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner is without any basis since a notice, for fresh hearing, was issued to the petitioner by UPC and the same was received on behalf of the petitioner. In support of the contention, he has produced documentary evidence and submitted that some person has received the notice of new date of hearing which was fixed on 07.03.2014 and therefore, the submission made by the learned advocate for the petitioner that he was not aware about the date of the hearing is without any basis and therefore, is required to be discarded. 12. As far as second contention raised by the petitioner is concerned, Mr. Oza, learned senior advocate would submit that since the petitioner was aware about the notice of fresh date, he should have appeared befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Member (Technical) of the Tribunal. The Member(Technical) of the Tribunal ought not to have proceeded with the matter in absence of the petitioner and ought not to have decided the same, which is, in our opinion, contrary to the decisions of the Hon'ble Apex Court in case of Automotive Manufacturers Association V. Designated Authority and Ors. reported in (2011) 2 SCC 258 and in the case of Union of India Ors. V. Shiv Raj Ors. reported in (2014) 6 SCC 564 (Supra). The Member (Judicial) of the Tribunal was the best person to decide the matter only after getting some clarification, which he intended to get from the either party as he had put remarks on 25.10.2013. 16. Considering the peculiar facts and circumstances of the case, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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