TMI Blog2021 (3) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.10.2017. In our opinion, the said request for adjournment made by the petitioner was reasonable. But, the fact remains that the learned Tribunal has not passed any order either allowing or rejecting the application seeking adjournment and has also proceeded to decide the appeal ex-parte on merits while keeping its hand-off from the adjournment application. The Code of Civil Procedure does recognize the right of the appellant-petitioner to get his appeal decided on merits. In the present case, it is an admitted fact that the appeal preferred by the petitioner has been decided ex-parte and an application seeking adjournment of the hearing of appeal had been filed by the petitioner much prior to the next date of listing of the appeal, which has remained undecided. By filing the restoration application, the petitioner had sought for recall of the order passed in appeal by contending that all facts relevant for the proper adjudication of the case had not been placed on record of the appeal. However, the said application also came to be rejected by the learned Tribunal by holding that the issue involved has been decided on merits and that the recall of the order and its substitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticles classifiable under Chapter 74 of the Schedule to the Central Excise Tariff Act, 1985. It is the case of the petitioner that on 10.02.2006 the Officers of the Directorate General of Central Excise Intelligence (DGCEI) visited the factory premises of the petitioner and impounded certain documents. It was alleged that the petitioner had clandestinely cleared excisable goods and accordingly, was asked to deposit the Central Excise Duty to the tune of ₹ 5,94,953/- leviable on the articles of copper valued at ₹ 36,45,545/- under Section 11A of the Central Excise Act, 1944 (for short, the Act ) by invoking the extended period of five years as per proviso to sub-Section (1) of Section 11A of the Act. During the course of investigation, the petitioner had paid the amount of Duty so demanded and was, thus, asked to tender its explanation as to why the amount of Duty so paid should not be appropriated against the total Duty demanded. 3. The Additional Commissioner, Central Excise, Ahmedabad-III passed the Order-in-Original No.11/ADC (SC)/2010 dated 02.08.2010 confirming the Demand raised by the respondent-Department and thereby, directed that the amount paid by the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the ground of limitation as provided under Section 11B of the Act, as the same was filed beyond the period of One Year from the date of the judgment and order of the Tribunal. In response to such notice, the petitioner filed his reply dated 20.05.2013. However, by order dated 09.07.2013 passed by the Deputy Commissioner, Central Excise, the refund claim made by the petitioner came to be rejected on the ground of limitation. 6. Aggrieved by the order passed by the Deputy Commissioner, Central Excise dated 09.07.2013, the petitioner preferred an appeal before the Commissioner (Appeals) in Order-in-Appeal No. AHM-EXCUS- 003-APP-365-13-14. The said appeal came to be disposed of by order dated 27.02.2014. The relevant observations are reproduced hereunder :- 5.5 .... It is evident from the provisions of Section 11B that it governs refund of duty and interest from the relevant date and not penalty. Considering the provisions of Section 11B (supra), I find that the amount of penalty paid by the applicant is refundable. Since refund of penalty is not covered under Section 11B, the condition of filing of refund claim within one year from the relevant date is not applicable for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that right from the decision rendered by the Apex Court in the case of Mafatlal Industries v. Union of India, 1997 (89) ELT 247 (S.C.), which was followed in several other cases and also in Union of India v. Suvidhe Ltd., 1997 (94) ELT 159 (SC), it has been held that in case any amount is deposited during the pendency of adjudication proceedings or investigation, then such amount would be in the nature of deposit under protest and therefore, the principles of unjust enrichment would not apply. 9.1 It was submitted by learned advocate Mr. Sheth that the petitioner wanted to rely upon certain documents in support of his case on record of the learned Tribunal and therefore, had moved an application before the learned Tribunal on 09.10.2017 seeking postponement of the hearing but, unfortunately, the learned Tribunal neither acceded to the request made by the applicant-petitioner in such application nor passed any order on such application. In fact, the learned Tribunal proceeded with the hearing of the appeal ex-parte on 13.10.2017 and also went on to render its final judgment and order on merits on the very same day. It was further submitted that sufficient cause was shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referring to the unreported decision rendered by the Coordinate Bench of this Court in the case of Ajni Interiors v. Union of India and others in Special Civil Application No.10435 of 2018 dated 04.09.2019, it was submitted that the law on the issue is settled and it has also been affirmed by the Hon'ble Supreme Court in Special Leave Petition (Civil) Diary No(s).3952 of 2020 on 20.02.2020. 11. Having heard the learned counsel for the parties, it is evident that the learned Tribunal has rejected Application No. E/ROA/10804/2017 filed by the petitioner for restoration of Central Excise Appeal No.11173 of 2014 on the ground that recall of the earlier order would result in review of its order and that the Tribunal is not vested with such power under the statute. It appears from the record that the appeal in question was listed for hearing for the first time before the learned Tribunal on 08.09.2017. The hearing was, thereafter, adjourned to 13.10.2017. In the meantime, the petitioner made an application before the learned Tribunal on 09.10.2017 requesting to postpone the hearing of the appeal to 03.11.2017 on the ground that the petitioner wanted to rely upon certain documents. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Courts had taken the view that the High Court cannot decide the matter on merits, but could only dismiss the appeal for appellant's default. Conflicting views raised by the various High Courts gave rise to more litigation. The Legislature, therefore, in its wisdom, felt that it should clarify the position beyond doubt. Consequently, Explanation to sub-rule (1) of Rule 17 of Order 41 CPC was added by Act 104 of 1976, making it explicit that nothing in sub- rule (1) of Rule 17 of Order 41 CPC should be construed as empowering the appellate court to dismiss the appeal on merits where the appellant remained absent or left un-represented on the day fixed for hearing the appeal. The reason for introduction of such an explanation is due to the fact that it gives an opportunity to the appellant to convince the appellate court that there was sufficient cause for non-appearance. Such an opportunity is lost, if the courts decide the appeal on merits in absence of the counsel for the appellant. 14. As can be seen from the above decision, the Code of Civil Procedure does recognize the right of the appellant-petitioner to get his appeal decided on merits. In the present case, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was unable to appear before it for no fault of his own, the ends of justice would clearly require that the ex parte order against him should be set aside. Not to do so on the ground of lack of power would be manifest injustice. Quite apart from the inherent power that every tribunal and court constituted to do justice has 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. The power to proceed ex parte carried with it the power to enquire whether or not there was sufficient cause for the absence of a party at the hearing. 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. [71 ITR 815 SC and 1981 (2) SCR 341 followed]. 17. Considering the facts of the case and the principle laid down by the Apex Court in the case of J.K. Synthetics Ltd. v. Collector of Central Excise (supra), which has been followed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law and they deserve to be quashed and set aside. 19. For the foregoing reasons, the petition is allowed. The impugned order dated 04.05.2018 passed by the Tribunal in Application No. E/ROA/10804/2017 (Order No. M/10366/2018) as also the judgment and order dated 13.10.2017 passed by the Tribunal in Final Order No.A/13327/2017 (In Central Excise Appeal No.11173 of 2014) are quashed and set aside. The appeal being Central Excise Appeal No.11173 of 2014 is restored to the file of the learned Tribunal and at the first instance, the said appeal is ordered to be listed on Board of the learned Tribunal on 22nd March, 2021 for further hearing. It is expected from the learned Tribunal that while deciding the appeal, it shall adhere to the principles of natural justice and shall, thereafter, decide the appeal on merits in accordance with law and as expeditiously as possible. With the above observations and directions, the petition stands disposed of. No costs. ( SONIA GOKANI, J ) ( GITA GOPI, J ) FURTHER ORDER After the order was pronounced, Mr. Parth Divyeshvar, learned Central Government Standing Counsel appearing for the respondents, requested for stay of this order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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