Research › Search › Judgment

Gujarat High Court · body

2014 DIGILAW 283 (GUJ)

SHINGAR COSMETICS PVT LTD v. UNION OF INDIA

2014-02-20

AKIL KURESHI, SONIA GOKANI

body2014
ORDER AKIL KURESHI, J. Petitioners have challenged the orders Annexures E, K and O passed by the Customs, Excise and Service Tax Appellate Tribunal (‘Tribunal’ for short). Briefly stated, the facts are as under: The petitioners had preferred appeal against adjudication orders before the Tribunal in which the Tribunal insisted that the petitioners deposit Rs.4 lacs by way of pre-deposit condition. Such order was passed on 7th January 1988. The petitioners also deposited such amount. Their appeals, therefore, were to be taken up for hearing on merits by the Tribunal. On 27.10.97, the Tribunal passed its first order which is under challenge. On 27.10.97, the Tribunal passed the following order: “None for the appellants despite notice. Appeal dismissed for non appearance under Rule 20 CEGAT (Procedure) Rules 1982.” This order, the petitioners did not challenge for years together. The case of the petitioners is that no notice of hearing before the Tribunal was received by them. The order dated 27.10.97 was also not served. They were, therefore, not aware about the dismissal of the appeal before the Tribunal. Only when the department issued notice dated 13.2.13, seeking recovery of the outstanding dues that the petitioners realized about the movement before the Tribunal. The petitioners thereafter, moved an application before the Tribunal on 17.2.2013 and prayed for recall of the order dated 27.10.97. In addition to contending that the petitioners were not aware about the date of hearing or the order passed by the Tribunal on 27.10.97, they also contended that in any case, the Tribunal could not have dismissed the appeal for default and ought to have decided the issues on merits. The Tribunal dismissed the said application by order dated 18.3.2013 in following terms: “6. We find that the present application is filed after almost 16 years from the order of dismissal. The Hon’ble Bombay High Court in the case of Kiritkumar Jawaharlal Shah vs. Union of India supra held that though there is no period of limitation prescribed for filing an application for setting aside the order of dismissal, the Tribunal was justified in holding that in any case since the application was filed beyond the period of three months from the date of dismissal of appeal. In view of the above, the application for restoration of the appeal is dismissed.” The petitioners thereupon filed yet another application on 25.3.2013 before the Tribunal titling it as an application for rectification which was dismissed by the Tribunal by order dated 6.1.2014 observing that the order was dictated in court in the presence of counsel for the applicant. The Tribunal does not have power of review. There was no error apparent on the record. The application was, therefore, dismissed. In addition to such facts, learned counsel for the petitioner drew our attention to the applications made by the petitioners under the Right to Information Act calling for the details about the service of notice of hearing before the Tribunal in the year 1997. In response to such application, the petitioners were told by the Registry of the Tribunal that the appeal papers were not traceable/available with their office. They were also asked to submit an affidavit that no other orders were passed by the Tribunal in the said appeal after the order dated 27.10.97. In yet another communication, the petitioners were sent xerox copy of the dispatch register for post which contains besides others, entry No.8437 addressed to petitioner No.1 company. On the basis of such facts, counsel for the petitioner vehemently contended that the Tribunal ought to have recalled its order dated 27.10.97. Such order was passed ex parte. The petitioners were never served with the notice of hearing. Such order was also never served to the petitioners thereafter. In any case, the Tribunal erred in dismissing the appeal for default instead of deciding the issues on merits. We are, however, of the opinion that after such a long lapse of time, the issues cannot be reopened. Firstly, the dispatch register of the relevant time shows that communications were dispatched to the petitioners. Secondly, the Tribunal in its order dated 27.10.97 records that though served nobody appeared. Sixteen long years passed after this order was passed before petitioners applied to the Tribunal for recalling the order. Under normal circumstances, if the petitioners were not served with the notice of hearing, some delay in enquiring the progress in appeal and thereafter approaching the forum for recalling the order can well be understood. In the present case, the petitioners did not enquire about their own appeal before the Tribunal for more than 16 years. Under normal circumstances, if the petitioners were not served with the notice of hearing, some delay in enquiring the progress in appeal and thereafter approaching the forum for recalling the order can well be understood. In the present case, the petitioners did not enquire about their own appeal before the Tribunal for more than 16 years. In the meantime, the entire record is lost. Documents, orders, notings, receipt, none of them would be available. At this stage, therefore to put heavy burden on the Registry of the Tribunal to establish that not only the notice of hearing was dispatched, the same was served would be too onerous a burden to be discharged. In addition to the situation noted above, we are also influenced by the dispatch register which shows the communication of notice of hearing and the recording of the Tribunal in its judicial order that though served no one appeared before the Tribunal. If within a reasonable time, the petitioners had approached and prima facie established that the dispatch of notice does not necessarily mean receipt thereof by the petitioner and even the contents of the Tribunal’s order are erroneous, we would have certainly looked into the matter. In the present case, the petitioners cannot cast away their responsibility of pursuing their own appeal and at least inquiring about it from the Tribunal or their legal representative as to the progress of the matter. Right after 1988 when the pre-deposit order was passed, the petitioner never inquired about the progress in the appeal. More than 25 years thus passed before the petitioners started making inquiries. We would, therefore, go by the official record that the intimation had been dispatched to the petitioners and the Tribunal’s recording that though served no one had appeared before the Tribunal on the date of hearing. Ordinarily, even if served, for valid reasons if the petitioners could not appear before the Tribunal, we would have certainly allowed one more opportunity particularly when the appeal was dismissed not on merits; even if the same was decided on merits. In the present case, however, unduly long time has passed. All records are lost. We therefore, accept the final version of dispatching of notice of hearing on the petitioners. The petition is therefore, dismissed.