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TMI Blog2022 (9) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... P/12), and thereafter by utilisation of CENVAT Credit. 2.2 On 04.05.2011, the Petitioner applied for a refund of Service Tax amounting to Rs.39,09,130/- which was deposited via challan dated 06.05.2010 under Section 11B of the Central Excise Act, 1944 (hereinafter referred to as "the CE Act"). 2.3 After filing the application for refund, the Petitioner explained the circumstances in which its Service Tax liability was defrayed twice over through personal appearance of its authorised representative as well as via letters dated 28.06.2011, 10.01.2013, and 21.01.2013. 2.4 The refund application filed by the Petitioner was rejected by the Order-in-Original dated 28.06.2013 (hereinafter referred to as "the OIO") passed by the Respondent No. 2. The refund was rejected on the ground that the Petitioner, having opted to discharge Service Tax liability through a challan, should not have debited the same amount from its CENVAT Credit Account. 2.5 Aggrieved by the OIO, the Petitioner filed an Appeal before the Commissioner (Appeals). The said Appeal was rejected by the Respondent No. 1 in its Order-in-Appeal dated 30.04.2014 (hereinafter referred to as "the OIA") and the OIO was upheld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited - PSF (SC) New Udaan Bhawan, Opposite T-3 India [sic: Indira] Gandhi International [sic: International] Airport New Delhi -110037" To be noticed, the address, as set forth above, is the Second Address. 2.11 The Restoration Application was taken up for hearing by the CESTAT on 13.11.2019 in the absence of the Petitioner and was dismissed for non-prosecution as well as failure to show sufficient cause for Restoration of the Appeal. 2.12 It is averred by the Petitioner that once again there was no communication received by it. On 24.12.2021, the Petitioner applied for inspection of the records of the CESTAT and was informed that an Order dated 13.11.2019 had come to be passed by the CESTAT dismissing its Restoration Application (hereinafter referred to as "the Restoration-Dismissal Order"). 2.13 On 07.01.2022, the Petitioner inspected the records of the CESTAT. It is averred by the Petitioner in its Petition that, based on the inspection conducted, the Petitioner ascertained the following: "i. Petitioner's Appeal was received by the Tribunal on 28.07.2014. ii. As per record of orders, notice for hearing of the appeal on 16.10.2014 was issued to the Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, further shows that the Petitioner was not concerned with the status of its Restoration Application either. 3.4 The Respondents have, therefore, contended that the Petitioner has been negligent in pursuing the matter, and hence this Petition is without merit. 4. The matter was heard on 25.08.2022. The Petitioner has filed a detailed compilation of Judgments in support of its plea that the CESTAT failed to give an opportunity of being heard and passed the impugned Order(s) without adhering to the principles of natural justice. Counsel for the Respondents on the other hand contended that the Petitioner has failed to diligently pursue its Appeal and Restoration Application hence CESTAT has rightly dismissed its Appeal and Restoration Application. 5. A perusal of the record showed that while filing its Memorandum of Appeal before the CESTAT, Petitioner did not claim any interest on the delay on refund of Service Tax. The prayers in this Petition don't claim any interest either and read as follows: "a. Issue a Writ of certiorari, or a Writ in the nature of certiorari, or any other appropriate Writ, Order or direction, quashing the Impugned Miscellaneous Order No. 50885/2019 date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary." 6.3 In the Balaji Steel Case (supra), it has been held that in an Appeal filed under Section 35 C (1) of the CE Act, the use of the words "pass such orders thereon as it thinks fit" as appearing in the provision, enjoins the Tribunal to pass an Order on the Appeal confirming, modifying or setting aside the decision or order appealed against or it may remand the matter. It does not give any power to the Tribunal to dismiss the Appeal in default or for want of prosecution if the appellant is not present when the Appeal is taken up for hearing. The relevant extract is below: "10. From a perusal of the aforesaid provisions, we find that the Act enjoins upon the Tribunal to pass order on the appeal confirming, modifying or annulling the decision or order appealed against or may remand the matter. It does not give any power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T 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 notices sent out to the Petitioner were not sent to the address of the Petitioner mentioned in paragraph 4 of its Restoration Application but instead have been sent to the address as set forth in its Appeal: M/s. Delhi International Airport P. Ltd. ESCROW PSF (SC) Terminal - 1B, Domestic Airport, New Delhi. 7.1 We also have to keep in mind 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. 7.2 However, the CESTAT in the Restoration-Dismissal Order records that they are of the opinion that the Appeal should be dismissed, merely for "want of pursuance on the part of the Petitioner". 7.3 Clearly, the view of the CESTAT in both the Final Order and the Res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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