CX - Tribunal had proceeded on basis of incorrect findings of fact, therefore, order cannot be sustained: High Court
By TIOL News Service
AHEMDABAD, MAY 23, 2017: IN the matter of ROA applications filed against the Tribunal order No.A/11701-11714/2015 dated 30.11.2015, the CESTAT had held thus -
CX - ROA applications filed by assessee on ground that Tribunal had dismissed appeals for non-prosecution, by way of remand vide order dated 30.11.2015 - Tribunal observed that demand was proposed on ground of clandestine removal of goods and contention of Revenue is that adjudicating authority had not considered the evidences in proper manner - Tribunal held that it is difficult to proceed in matter and therefore, remanded the matter to adjudicating authority to decide afresh on grounds of appeals raised by Revenue, after giving proper opportunity of hearing to assessee - When appeals are not dismissed and have been remanded with all issues open, then, same cannot be restored : CESTAT
Please see 2016-TIOL-1129-CESTAT-AHM .
Aggrieved, the petitioners are before the Gujarat High Court.
After narrating the facts involved, the petitioner submitted that after an ex parte order had been passed by the Tribunal, the petitioner moved an application for restoration of the appeal drawing the attention of the Tribunal to the decision of the Supreme Court in the case of J.K. Synthetics Ltd. = 2002-TIOL-261-SC-CX . However, by the impugned order dated 1st April 2016, the application came to be rejected on the ground that restoration of the appeal would amount to review of the order.
After considering the submissions made by both sides, the High Court observed –
++ On a plain reading of the above order (dated 30 November 2015), it is evident that the sole ground on which the Tribunal has remanded the matter to the adjudicating authority to decide afresh on the grounds of appeal raised by the Revenue is that the respondents were not appearing before the Bench and were not contesting the grounds of appeal of the Revenue on merits and that it was difficult to proceed in the matter.
++ In the entire order, there is nothing therein to indicate that the Tribunal has applied its mind to the merits of the case or has given any finding on the merits one way or the other. Solely on the ground that there was no assistance on the part of the respondent which made it difficult for the Tribunal to decide the appeal, the Tribunal has remanded the matter to the adjudicating authority.
++ The Tribunal, by the impugned order dated 1st April, 2016, rejected the application for recalling the earlier order by observing that the Tribunal had gone into the issue and applied its mind and had come to a decision and that, therefore, recalling of the order and restoring the appeals would amount to review of the earlier order of the Tribunal which would not be legal and proper.
++ In the present case, the application filed by the petitioner is not an application for rectification under section 35C(2) of the Central Excise Act but is an application for recalling the earlier order dated 30th November, 2015 and for restoring the appeal to file. …such an application has been made under rule 41 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 …
++ Insofar as the order dated 30th November, 2015 is concerned, the Tribunal has not entered into any discussion on the merits of the appeal but has merely remanded the matter on the ground that the respondents (the petitioner herein and others) had not contested the appeal of the Revenue on merits and it was difficult to proceed in the matter. As discussed earlier, the said finding of the Tribunal is factually incorrect, inasmuch as, the petitioner had put in appearance through the learned advocate and had contested the appeal and had also filed cross-objections.
++ In the aforesaid premise, when the order dated 30th November, 2015 was not an order passed on merits and the Tribunal had proceeded on the basis of incorrect findings of fact, the Tribunal was not justified in not entertaining the application made by the petitioner for recalling its earlier order dated 30th November, 2015 and restoring the appeal. The impugned order passed by the Tribunal, therefore, cannot be sustained.
The petition was allowed. The impugned order dated 1st April 2016 passed by the Tribunal (in ROA) as well as the order dated 30th November 2015 were quashed and set aside. Consequently, the Appeal was restored to the file of the Tribunal.
(See 2017-TIOL-969-HC-AHM-CX)
