TMI Blog2017 (5) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... aives service of notice of rule on behalf of the respondent. Having regard to the controversy involved in the present petition, which lies in a very narrow compass, the petition was taken up for final hearing today. 2. This petition is directed against the common order dated 25.1.2017 passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as the Appellate Tribunal ) in Miscellaneous Applications No. C/ROA/10348/2016 and C/ROM/10349/2016, whereby the Appellate Tribunal rejected both the applications. 3. Shorn of all unnecessary facts, briefly stated the facts of the case are that a final assessment order/order-in-original came to be passed by the Assistant Commissioner of Customs, Gujarat Pipavav Port Ltd., Pipavav (hereinafter referred to as the adjudicating authority ), on 8.1.2017 denying the benefit of exemption notification No.21/2002 to the petitioner and charging the petitioner with customs duty at the rate of 15% and directing the petitioner to pay the differential duty amounting to ₹ 57,38,518/-. The petitioner challenged the order of the adjudicating authority before the Commissioner of Customs (Appeals), Ahmedabad, who, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vocate for the petitioner, submitted that the impugned order is a non-speaking and cryptic order and that the Appellate Tribunal has not dealt with the core and imperative issues raised by the petitioner. Inviting the attention of the court to the impugned order, it was pointed out that the Appellate Tribunal has observed that the appeal pertains to the year 2007 and could not have been kept pending for long, despite the fact that a similar appeal of the very same year was adjourned while the petitioner s appeal was dismissed ex parte on merits. It was submitted that the Appellate Tribunal erred in observing that having decided the matter on merits, it has become functus officio and cannot entertain an application for restoration. It was submitted that the attention of the Appellate Tribunal was drawn to the decision of the Supreme Court in the case of J.K. Synthetics Ltd. v. Collector of Central Excise, 1996 (86) E.L.T. 472 (S.C.), which has been completely ignored by the Appellate Tribunal. Referring to the above decision, it was pointed out that the Supreme Court has held that if, in a given case, it is established that the respondent was unable to appear before it for no fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was unable to mention the appeal. It was urged that cognate Appeal No.C/352/2007, wherein identical issues were raised, was listed from time to time together with the present appeal and that the appeal of the petitioner was listed at Serial No.16 and the cognate appeal was listed at Serial No.15. However, the appeal of the petitioner was dismissed while the cognate appeal was adjourned. It was submitted that the absence of the learned advocate for the petitioner was bona fide, unintentional and inadvertent and as there was sufficient and genuine reason, the Tribunal was not justified in not recalling the ex parte order dated 23.2.2016. It was, accordingly, urged that the impugned order dated 25.1.2017 deserves to be quashed and set aside and the application filed by the petitioner for recalling the earlier order dated 23.2.2016 deserves to be allowed. 5. On the other hand, Mr. Chintan Dave, learned senior standing counsel for the respondent reiterated the contents of the affidavit in reply filed on behalf of the respondents and adopted the findings recorded by the Appellate Tribunal and submitted that no case is made out so as to warrant interference. 6. A perusal of the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this respect, CEGAT is clothed with express power under Rule 41 to make such order as is necessary to secure the ends of justice. CEGAT has. therefore, the power to set aside an order passed ex parte against the respondent before it if it is found that the respondent had, for sufficient cause, been unable to appear. 7. It is for CEGAT consider in every such case whether the respondent who applies for recall of the ex parte order against him had sufficient cause for remaining absent when it was passed and, if it is established to the satisfaction of CEGAT that there was sufficient cause, CEGAT must set aside the ex parte order, restore the appeal to its file and hear it afresh on merits. 8. On the facts of the present case, we think it proper to allow the appellants application to CEGAT for setting aside the ex parte order against it ourselves. 9. The appeal is allowed. The order under appeal is set aside. The application of the appellant for recalling the order dated 31st August, 1987, passed by CEGAT exparte against it is allowed. The appeal (No.590/84C) before CEGAT is restored to its file and shall be heard and disposed of on merits. 8. Thus, the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the petitioner in the appeal memorandum or any independent finding of the Appellate Tribunal. The Appellate Tribunal has merely reproduced extracts of the order-in-original and the order-in-appeal and has upheld the same stating that the impugned orders are unassailable. Though the Appellate Tribunal has used the expression, in view of the above analysis , there is no analysis worth the name reflected in the said order. Clearly therefore, the order dated 23.2.2016 passed by the Appellate Tribunal is a non-reasoned and non-speaking one. The observation made by the Appellate Tribunal in the impugned order to the effect that the Bench comprising of the President and the Member (Technical) had arrived at a reasoned decision dated 23.2.2016, is therefore, not borne out from the record. 11. In the light of the law laid down by the Supreme Court in the case of J.K. Synthetics Ltd. v. Collector of Central Excise, (supra), wherein the Supreme Court has held that the fact that rule 21 does not expressly state that an order on an appeal heard and disposed of ex parte can be set aside on sufficient cause for the absence of the respondent being shown does not mean that CEGAT has no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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