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2004 DIGILAW 720 (PNJ)

Commissioner Of C. Ex. v. Oswal Agro Furane Ltd.

2004-07-19

ADARSH KUMAR GOEL, N.K.SUD

body2004
Judgment A.K.Goel, J. 1. This petition seeks a direction for reference under Section 35H of the Central Excise Act, 1944 (hereinafter referred to as the Act) on the question whether the Tribunal could re-call its order dated 6-4-1999 passed on merits. 2. The respondents claimed exemption from excise duty on bottom work platform for weigh bridge on the ground that the same were necessary equipment for manufacturing operations and, thus, exemption under Notification No.123/81-C.E., dated 2-6-1981 was applicable. Though initially this contention was upheld by the Asstt. Collector, on review, the claim was disallowed. The appeal filed by the respondents was dismissed and it was held that bottom work platform was neither capital goods nor components nor raw material for manufacture of export items. 3. Since respondents were not represented when the order, dated 22-3-1999 dismissing the appeal was passed, the respondents filed an application on the ground that notice of hearing the appeal was not received by the respondents in time as their consultant had expired. The Tribunal allowed this application and re-called the ex parte order, dated 22-3-1999. The petitioner filed an application for re-call of the order of rehearing of the appeal. The Tribunal relying on Rule 41 of the Customs, Excise & Gold (Control) Appellate Tribunal (Procedure) Rules, 1982 and judgment of the Apex Court in J.K. Synthetics Ltd. v. Collector of Central Excise - 1996 (86) E.L.T. 472 (S.C.) held that the Tribunal had jurisdiction to re-call the ex parte order. 4. We have heard learned Counsel for the parties. 5. In view of the fact that the Tribunal was satisfied that non-appearance on behalf of the respondents at the time of decision of the appeal was for reasons beyond their control and there was justification for re-call of the order with a view to afford hearing to the respondents on merits, we are of the view that the petitioner will not be prejudiced if the case is heard on merits. In view of the judgment of the Apex Court in J. K. Synthetics Ltd. v. Collector of Central Excise (supra), wherein it was observed as under : "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 clearly require that the ex parte order against him should be set aside. 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 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 round that the respondent had, for sufficient cause, been unable to appear". no question of law arises. Thus, there is no ground to interfere with the order passed by the Tribunal. 6 Accordingly, this petition is dismissed.