9911796707
TMI Blog2017 (5) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... ein preferred an appeal before the Tribunal. It is the case of the petitioner that upon service of the said appeal, the petitioner filed cross-objections raising various grounds which though were raised before the third respondent - adjudicating authority, had remained undecided since the third respondent had dropped the proceedings on the basis of documentary evidence produced before him, etc. 5. It is averred in the petition that in the proceedings of the appeal, the personal hearing was fixed on 27th April, 2015 which came to be adjourned to 8th June, 2015, but due to non-availability of the Bench, the same was adjourned to 6th July, 2015 and thereafter, to 29th September, 2015. It is the case of the petitioner that on both the above-referred dates, the learned advocate had appeared on their behalf and had argued the case. On 29th September, 2015, the learned advocate had filed a synopsis in the nature of a brief note and had also furnished copies of the relevant case laws on which reliance had been placed on behalf of the petitioner. After considering the submissions made on 29th September, 2015, the second respondent adjourned the matter to 30th November, 2015 on which date, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order dated 1st April, 2016 passed by the Tribunal on the restoration application, it was submitted that the Tribunal has observed that in the previous order, the Tribunal has gone into the merits of the appeal and has remanded the matter. It was argued that on a perusal of the order passed in the appeal, it is evident that the Tribunal has not applied its mind to the merits of the case. It was submitted that the present case would be squarely covered by the decision of the Supreme Court in the case of J.K. Synthetics Ltd. v. Collector of Central Excise (supra) and that, therefore, the impugned orders passed by the Tribunal deserve to be quashed and set aside and the appeal filed by the petitioner is required to be restored to file to be heard on merits. 8. Opposing the petition, Mr. Jaimin Gandhi, learned standing counsel for the respondents, submitted that the decision of the Supreme Court in the case of J.K. Synthetics Ltd. v. Collector of Central Excise (supra) would not be applicable to the facts of the present case, inasmuch as, in the said case, there was an order passed by the Appellate Tribunal dismissing the appeal ex parte on merits. It was submitted that in the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15, the Tribunal proceeded to pass an order in the following terms:- "These appeals are arising out of a common order and therefore, all are taken up together for disposal. 2. None appears on behalf of the Respondents. On perusal of the records, we find that the learned Advocate on behalf of M/s. Shivam Casting requested for adjournment. There is no adjournment application by the other Respondents. The learned Authorised Representative on behalf of the Revenue submits that all these appeals are old ones of 2007. He submits that on earlier occasion, the matter was adjourned at the request of the Respondents. We find that the demand was proposed on the ground of clandestine removal of the goods. The main contention of the learned Authorised Representative on behalf of the Revenue is that the Adjudicating Authority had not considered the evidences in proper manner. He reiterates the grounds of appeal. 3. As the Respondents are not appearing before the Bench and also not contesting the grounds of appeal of the Revenue on merit and it is difficult to proceed in the matter. Hence, we remand the matter to the Adjudicating authority to decide afresh on the grounds of appeal raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsider its legal view taken earlier in pursuance of a rectification application. 13. In the present case, the application filed by the petitioner is not an application for rectification under section 35C(2) of the Central Excise Act but is an application for recalling the earlier order dated 30th November, 2015 and for restoring the appeal to file. The learned advocate for the petitioner has submitted that such an application has been made under rule 41 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 (hereinafter referred to as "the rules") which provides that the Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice. The attention of the court was invited to the decision of the Supreme Court in the case of J.K. Synthetics Ltd. v. Collector of Central Excise (supra), wherein the Supreme Court has held thus: "6. If, in a given case, it is established that the respondent was unable to appear before it for no fault of his own, the ends of justice would require that the ex parte order against him should be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
