TMI Blog2022 (9) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing the Final Order and even the Restoration-Dismissal Order erred in law in not hearing the matter on merits. In the Final Order, the CESTAT dismissed the Appeal for non-prosecution. When the Restoration Application was filed by the Petitioner, it was incumbent on the CESTAT to at least ensure that the Petitioner is served the notice to appear, at the correct address especially in view of the fact that the Petitioner s Appeal has dismissed for non-prosecution. However, it is apparent that there was once again non-application of mind by the learned CESTAT. The Petitioner is not a small individual trader who is operating out of a premises that is not locatable. The Petitioner is the Delhi International Airport Limited whose addresses and contact details in addition to being available online, could have easily been ascertained by the CESTAT. Petition allowed. - W.P.(C) 1856/2022 - - - Dated:- 29-8-2022 - HON'BLE MR JUSTICE RAJIV SHAKDHER AND HON'BLE MS JUSTICE TARA VITASTA GANJU Petitioner Through: Mr. Sparsh Bhargava, Adv. Respondents Through: Mr. Akshay Amritanshu Mr. Ashutosh Jain, Advs. [Physical Hearing/Hybrid Hearing (as per request)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er referred to as the Second Address ). 2.7 On 20.08.2014, the Petitioner was served with a memo setting out the defects in the Appeal filed on the Second Address. The Petitioner had cured the defects raised pursuant to which the Appeal was numbered as ST No. 54605/2014 on 09.09.2014 (hereinafter referred to as the Appeal ). 2.8 It is averred by the Petitioner that after registration of the Appeal, the Petitioner did not receive any notice for hearing for a long period of time and hence decided to apply for an early hearing of the Appeal. It is further averred that it was at that time, upon enquiry made by the Petitioner, it was informed that an Order dated 16.10.2014 had already been passed by the CESTAT (hereinafter referred to as the Final Order ). 2.9 On 25.06.2019, the Petitioner applied for a certified copy of the Final Order, which was received by the Petitioner on 09.07.2019. A perusal of the Final Order revealed that the Appeal, filed on 09.09.2014, was dismissed on 16.10.2014 for non-prosecution. The Final Order recorded that the hearing notice in the case has come back as unserved. The relevant extract of Final Order in this regard states as follows: No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the communication has been placed in the file. v. On receipt of Petitioner s application for restoration, notice dated 14.10.2019 was issued to the Petitioner at Terminal 1B address for hearing on 05.11.2019. However, application was taken up for hearing only on 13.11.2019, for which no notice has been issued. vi. Thereafter, communication for certified copy of the order dated 13.11.2019 was issued by the registry on 09.12.2019. However, no acknowledgement indicating the receipt of the communication has been placed in the file. 2.14 It is in the aforegoing circumstances that the Petitioner has filed the present Petition, inter alia, stating that the impugned orders of the CESTAT, i.e., the Final Order and Restoration-Dismissal Order have been passed without affording the Petitioner an opportunity of being heard and are in violation of the principles of natural justice, and hence are liable to be set aside. 3. Notice was issued in the Petition on 03.03.2022 and thereafter the Respondents filed their Counter Affidavit. In the Counter Affidavit filed by the Respondents, it is contended that the Petitioner did not appear before the CESTAT on 16.10.2014 because it was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal no. 54605 of 2014 filed by the Petitioner and to decide it on merits, after affording an opportunity of being heard to the Petitioner; 5.1 We had, therefore on 25.08.2022, asked the Counsel for the Petitioner to obtain instructions on whether the Petitioner would raise a claim for interest in the event that we would be inclined to restore the Petition since, there is admittedly a delay on the part of the Petitioner in prosecuting his Appeal and Restoration Application as follows: 2. Counsel for the petitioner will obtain instructions as to whether, in case we are persuaded to remand the matter to the Customs, Excise Service Tax Appellate Tribunal [in short The Tribunal ] for hearing, he will press for interest between the period when the appeal was lodged and the order dated 13.11.2019 was passed, whereby the application for restoring the appeal was dismissed. 5.2 We are informed by the Counsel for the Petitioner that he has obtained instructions from the Petitioner and that the Petitioner agrees that it will not make a claim for interest for the period between the date of filing of the Appeal, i.e., on 28.07.2014/09.09.2014 and the date of the Restoration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant for want of prosecution and it ought to have decided the appeal on merits even if the appellant or its counsel was not present when the appeal was taken up for hearing. The High Court also erred in law in upholding the order of the Tribunal. 14. We, therefore, set aside the order dated 18-1-2014 passed by the High Court of Judicature of Bombay, Bench at Aurangabad and also the order dated 22-8-2012 passed by the Tribunal and directs the Tribunal to decide the appeal on merits. [Emphasis is ours.] 6.4 A Coordinate Bench of this Court while relying on provisions of Section 35 C (1) of the CE Act in Prakash Fabricators Galvanizers P. Ltd. v. Union of India, reported as 2001 (59) DRJ 296 (DB), held as follows: 5. On a bare reading of the provisions and having regard to the scheme of the Act as well as of the Customs Act, there can be no manner of doubt that the appeal filed before the Tribunal has to be disposed of on merits and cannot be dismissed for default of appearance of the appellant. Where there is no appearance on behalf of the appellant, the Tribunal has to decide the appeal ex-parte. The use of the expression thereon means that the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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