TMI Blog2015 (8) TMI 1366X X X X Extracts X X X X X X X X Extracts X X X X ..... He now puts forward a new contention that SCN was not served upon him and prays for recall of the final order of the Tribunal. In this application the appellant explains reasons for not submitting a written reply. If such practice is followed there would be no finality to any litigation. In such circumstances, we do not find any merit in the misc. application. Application not maintainable - decided against assessee. - ST/59858/2013 - Misc. Order No. M/ST/52915/2015-CU(DB) - Dated:- 11-8-2015 - Shri R.K. Singh, Member (T) and Ms. Sulekha Beevi C.S., Member (J) Shri G.R. Sarkar and Prashant Srivastava, Advocates, for the Appellant. Smt. Suchitra Sharma, CDR, for the Respondent. ORDER [Order per : Sulekha Beevi C.S., Member (J)]. - The above misc. application is filed by the appellant seeking rectification of mistake/restoration of the appeal which was dismissed by the Tribunal by its Final Order No. 54695/2014, dated 26-11-2014 [2016 (44) S.T.R. 300 (Tri.-Del.)]. 2. The grievance of the appellant in this misc. application is that the appeal was heard and disposed finally along with the stay application, on the day when the stay application alone was li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the disputed period. According to Revenue, the appellants were distributors/ marketing agency of M/s. Forever Living India (P) Ltd. and their activities would fall under BAS. Appellants did not submit any written reply to the show cause notice. Appellants, though appeared for personal hearing before the primary adjudicating authority and sought time for filing written reply did not file any reply at all. The appellants were issued letters/summons dated 22-6-2009, 9-7-2009/10-7-2009 to submit documents/information required for the investigation. They failed to respond to these requests. The primary adjudicating authority relied upon the sample copy of the Distributor Application Form which contained the Terms and Conditions of the agreement/relationship between the appellants and the Company (M/s. Forever Living Products India Ltd., M/s. Forever Living HNBP (P) Ltd.) and this was relied by the authorities below. So also information was called for from the company which supplied the same. The company imported/manufactured various types of products which were sold to ultimate customers by Direct Selling Method. The activities of the appellant, according to Revenue were services char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e show cause notice was not served upon them. In the present misc. application which is before us, the appellant has put forward a new contention that the SCN was not served upon the appellant. In Para 5 of the misc. application the appellant has stated as under : That the Hon ble CESTAT while dismissing the appellant s appeal has given an adverse observation that appellant had not submitted any reply to the show cause notice and thereby observed that the plea taken by the appellant in the appeal before CESTAT was never taken before. In this regard, it is submitted that appellant has not ever been served with show cause notice. In fact, the business premises of the appellant was closed much before issuance of the SCN and appellant s distributorship was terminated and cancelled (copy of letters given by the company to the appellant terminating his distributorship are enclosed as Annexure - (A). To bring out the correct facts, the appellant has filed a RTI application to the concerned authority asking for providing proof of service of show cause notice. Moreover, the appellant remained mostly in New Zealand with his son since, it was difficult to manage livelihood after closure o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession of the parties, had there been any objection raised by any of the parties, the Tribunal would not have proceeded to dispose the case or for that matter, would have recorded the objection before disposing the case finally. 9. Another judgment relied by the learned counsel for the appellants is Rawalwasia Ispat Udyog (P) Ltd. v. CESTAT, (supra) which is a case where the appeal was finally disposed at the stage of hearing the stay application after recording the consent of parties. The appellant therein had deposited the entire demand. It was not necessary to consider any application for stay. However an application for stay was filed and while taking up the application, the Tribunal after recording the concession of the counsel disposed the matter finally. The appellant filed an application for rectification of error apparent on the face of records (ROM application) before CESTAT stating that the concession recorded was incorrect. The ROM was dismissed and the said order was challenged before the Hon ble High Court. The Hon ble Court therein has observed as under : We do not wish to state that concession was not made. The dismissal of the application for rectification o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication seeking to recall the final order and restore the appeal (para 6 of the misc. application). The application is neither for Rectification of Mistake (ROM) nor an application for Restoration of Appeal (ROA). The appellant has opted to file a misc. application after final disposal of the appeal. In the first line of the misc. application the appellant has stated that the misc. application is being filed for rectification of mistake/restoration of appeal. The appellant therefore, seeks the Tribunal to bend suitably the misc. application as a ROM or ROA, which by any cannon of law is not permissible. The application per se is not maintainable. If the application was filed as a ROM it would have been listed before the same Bench of the Tribunal. By filing a misc. application the appellant has been able to conveniently avoid the application being considered as ROM, the reasons which we do not know. After receiving the final order and coming to know of the observation of the Tribunal regarding non-filing of written reply, the appellant has put forward a new contention that SCN was not served upon him. It appears that this new contention is attempted to be wrapped by raising a groun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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