TMI Blog2020 (7) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... is no satisfactory explanation that has been offered to explain this enormous delay of 500 days to the satisfaction of the Tribunal. In the present case, the first Restoration Application was dismissed in default and, therefore, the observations made by the Tribunal in Parwati Automotives Pvt. Ltd. would not help the Department. The second Restoration Application has been filed for recall of the order dated 22 June, 2018 and, therefore, would be maintainable as it is not for recall of the order dated 19 April, 2018. The facts stated above leave no manner of doubt that the Appellant had adopted a very callous approach and had not pursued the Appeal or the Restoration Application with any sense of responsibility - Application dismissed. - SERVICE TAX RESTORATION OF APPEAL NO. 51364 OF 2019 IN SERVICE TAX APPEAL NO. 00214 OF 2012 - MISC. ORDER NO. 50023/2020 - Dated:- 10-1-2020 - MR. JUSTICE DILIP GUPTA, PRESIDENT AND MR. C.L. MAHAR, MEMBER (TECHNICAL) Shri Vishal Kumar, Advocate, for the Appellant Shri R.K. Manjhi, Authorised Representative of the Respondent ORDER The Appellant had filed this Appeal before the Tribunal on 11 November, 2011 to assail the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d application for restoration of appeal dated 04.06.2018, assigning the aforesaid reasons. Copy of application for restoration of appeal is enclosed herewith as Annex 2. 4. In the wake of introduction of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019, ( SVLDR Scheme ), the Applicant inquired from the Counsel about the status of the restoration application, in light of exploring the possibility of availing amnesty under the SVLDR Scheme. The Counsel for the Applicant was under the impression that since it did not receive any communication regarding the date of hearing with respect to the restoration application from CESTAT Registry, the said application was still pending till date. Thereafter, upon learning that CESTAT Registry had discontinued the practice of issuing physical communication of hearing notices and that all relevant details were available on CESTAT website, it checked the said website for the status of the application. Subsequently, to its surprise, on 19.12.2019, the Counsel learnt that the application for restoration of appeal was dismissed for non-appearance vide Misc. Order No. 50372/2018 dated 22.06.2018. A copy of Misc. Order dated 22.06.2018 is enc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rofessional services of Mr. Ravinder Narain Co. Advocates to represent us before the Hon'ble Court. We have decided to shift these files to your office for you to handle; and are in the process of collating necessary documents. Soon we will be executing Vakalatnama in your favour. Please place these facts on Court record and plead for some time for us to organise. Copy of the Appellant Representative's such email is annexed hereto and marked as Annexure A-2. 5. Immediate on receipt of the aforesaid email (Annexure A-2) the present counsel took print of the same and reached court around 2.30pm; however, by that time Hon'ble Members on the Bench concluded all the matters in the cause list and had risen for the day. 6. In the aforesaid circumstances the present counsel made a request to the personal staff of the Hon'ble President and met him in his Chamber around 3.45pm. Hon'ble President was kind enough to hear the counsel and advise him to follow the order passed by then in the matter. 7. Thereafter, the present Counsel had to go to Odisha/ his hometown Nabarangpur for more than 15 days to attend to certain unavoidable family needs. This appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, accordingly filed immediately on 23 December, 2019. In such circumstances, there is no fault of the Appellant which had otherwise been pursuing the Appeal and had nothing to gain by getting the Appeal dismissed in default. 7. Learned Authorised Representative of the Department has opposed the said Application and submitted that : (i) Neither was there good reason for the learned Counsel for the Applicant not appear on 19 April, 2018 nor was there any good reason not to appear on 22 June, 2018; (ii) The Registry of the Tribunal had sent a communication dated 06 June, 2018 by Registered Post with acknowledgement due to the Appellant to inform that the Restoration Application filed by the Appellant would be taken up for final hearing on 22 June, 2018. A copy of this letter was also endorsed to the learned Counsel for the Appellant and the Department; (iii) After the Restoration Application was dismissed for non-appearance of the learned Counsel on 22 June, 2018, Registry of the Tribunal had sent a communication dated 03 July, 2018 to the Appellant as also its learned Counsel and Department by registered post with acknowledgement due which letter was also received by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Tribunal on 19 April, 2018, no one appeared on behalf of the Appellant to press the Appeal nor any adjournment application was available on the record. The appeal was, accordingly, dismissed for default. 10. The Appellant thereafter filed an Application for recall of the order dated 19 April, 2018 on 04 June, 2018. The case set out by the Applicant in this Restoration Application is that, on 18 April, 2018 the Appellant had changed the earlier Counsel and had instructed the second Counsel to appear in the Court and seek adjournment for preparation. An associate of the second Counsel did appear before the Court on 19 April, 2018, but the Court instructed the Counsel to produce a letter of authority or written instructions from the Appellant and it is in such circumstances that the Counsel left the Court and contacted the Appellant over phone. An email was then sent by the Appellant to the Counsel at 1.53 pm on the same day. However, by that time the order had already been passed. It has also been stated in the Application that the second Counsel had to go to his home town for more than 15 days for some work and as soon as he returned, the Application for recalling the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant and the Authorized Representative of the Department. The Restoration Application does not specifically mention about this notice dated 06 June, 2018. In fact, it states that the Counsel for the Applicant was under an impression that since it did not receive any communication regarding the date of hearing of the Restoration Application from CESTAT Registry, the said Application was still pending till date. In fact, the Application further mentions that CESTAT Registry had discontinued the practice of issuing physical communication of hearing notices and that all relevant details were available on CESTAT Website. Learned Counsel, therefore, checked the website for the status of the Application and then found that the Restoration Application had been rejected on 22 June, 2018 as no one had appeared to press it. 15. The aforesaid facts are also incorrect. As stated above, the Registry of the Tribunal had sent a notice dated 06 June, 2018 to the Appellant by registered post with acknowledgement due that Restoration Application would be listed before the Tribunal on 22 June, 2018. There is no averment in the Application that this letter sent by registered post with acknowle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Appellant. Such being the position, there is no reason as to why no attempt was made either by the Appellant or the learned Counsel for the Appellant to visit the website of the Tribunal to find out the order passed on the second restoration application. There is no satisfactory explanation that has been offered to explain this enormous delay of 500 days to the satisfaction of the Tribunal. 18. It will also be appropriate to examine the contention of learned Authorized Representative of the Department that the second Restoration Application is not maintainable in view of the decision of this Tribunal in Parwati Automotives Pvt. Ltd. It is seen that in the said case the first Restoration Application was disposed of by a speaking order and the second Application was filed on a different ground. It is for this reason that the Tribunal observed that the proper remedy was to have filed an Application for Rectification of the Mistake in case there was any error apparent on the record. In the present case, the first Restoration Application was dismissed in default and, therefore, the observations made by the Tribunal in Parwati Automotives Pvt. Ltd. would not help the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X
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