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2013 DIGILAW 1868 (RAJ)

Kamdhenu Cement Ltd. v. Commissioner of Central Excise, Jaipur

2013-10-24

AJAY RASTOGI, J.K.RANKA

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JUDGMENT 1. Instant appeal arises from a common order passed by CESTAT dated 12-3-2013. 2. It has been alleged by the appellant that adjudicating authority after affording of hearing to the respective parties finally passed the order dated 26-3-2012 and the appellant being aggrieved by the order of adjudicating authority preferred appeal before the Customs, Excise & Service Tax Appellate Tribunal. 3. However, in the form No. E.A-3 which the appellant has to fill giving its complete detail, at S. No. 6 indicated the address, on which the notices was to be sent to the appellant, the appellant mentioned "E-3A, G-a-1, Ground Floor Kanti Chandra Road, Bani Park, Jaipur-302016", which appear to be the address of Chartered Accountant who was appearing on behalf of the appellant-Kamdhenu Cement Ltd. and the notices were sent on the said address as and when the appeal was adjourned on few dates i.e. 3rd January & 11th March, 2013. 4. It appears from the record that no one appeared on behalf of appellant on 11-3-2013 and the matter was posted for 12-3-2013 and in absence of the appellant, by an ex parte order, the appeal preferred by the appellant, was dismissed on 12-3-2013. 5. The main thrust of submission of counsel for appellant is that their representative could not put appearance before the ld. Tribunal on 11-3-2013 and the next date was not made known to him and the usual practise of the ld. Tribunal in to send notice to the respective parties before final orders are passed in the pending appeals and as there was no notice of next date on which matter was posted by the ld. Tribunal i.e. 12-03-2013 and there remained confusion to their representative and by initiating ex parte proceeding the ld. Tribunal dismissed the appeal on merits without assigning reason vide order dated 12-3-2013 seriously jeopardising his right as he remained unable to make submissions before the ld. Tribunal for proper adjudication of the dispute. 6. Counsel for appellant submits that he only seeks indulgence of this court to get one opportunity to address the ld. Tribunal on merits failing which his substantive right of appeal remain meaningless. 7. Counsel for respondent, on the other hand, opposed the appeal and submits that sufficient opportunity of hearing was afforded but the appellant failed to appear before the ld. Tribunal and the ld. Tribunal on merits failing which his substantive right of appeal remain meaningless. 7. Counsel for respondent, on the other hand, opposed the appeal and submits that sufficient opportunity of hearing was afforded but the appellant failed to appear before the ld. Tribunal and the ld. Tribunal was justified in deciding the appeal ex parte after looking into the material on record vide order impugned. 8. We have considered submissions of the parties and we find substance in the submissions of the appellant. When the matter was listed on 11-3-2013, the appellant could not appear, ordinarily the party was to informed about the next date by messenger or through any other mode but if the matter was fixed on 11-3-2013 and the ld. Tribunal posted it on 12-3-2013 and passed ex parte order dismissing the appeal, certainly his rights have been jeopardised by not affording a reasonable opportunity of hearing and this being a settled principle of administrative law that no one should be condemned unheard, passing of the ex parte order impugned herein dismissing the appeal of the appellant, has certainly affected his right of hearing. In the facts & circumstances, we find that a reasonable opportunity, as observed, has not been afforded to the appellant. 9. Consequently, the instant appeal stands allowed and the order of the ld. Tribunal dated 12-3-2013, as regards the appeal preferred by the present appellant, to that extent is quashed and set aside and the matter is remitted back to the ld. Tribunal to proceed afresh in accordance with law. The parties are directed to appear before the ld. Tribunal on 18-11-2013.Appeal allowed. *******