By TIOL News Service

MUMBAI, FEB 23, 2014: IN July, 1987, the Collector of Central Excise, Baroda had passed an o-in-o and against this order the appellant assessee had filed an appeal before the CESTAT in the same year. After more than ten years the appeal was dismissed by the CESTAT for non-prosecution.

Then there was an eerie silence and in February, last year, the appellant filed an application for Restoration of the appeal.

When the matter came before the Bench, the appellant submitted that the Tribunal has no power to dismiss the appeal for non-prosecution and the appeal should have been decided on merits.

The Revenue representative submitted that it is too late in the day for filing a ROA; that the sixteen year delay is unjustified and the application is not maintainable. Reliance was placed on the decision in Kirtikumar Jawaharlal Shah vs. UOI - (2011-TIOL-953-HC-BOM-CX) and the Tribunal decision (2009-TIOL-2593-CESTAT-MUM) to submit that the request for restoration is to be made within three months from the dismissal of the appeal.

The Bench while dismissing the application on 18.03.2013 observed -

"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 Kirtikumar 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.”

We reported this case as 2013-TIOL-972-CESTAT-MUM and were wondering as to why the Revenue did not make any recovery all these years even though they also had the Board Circular 967 in their arsenal.

Nonetheless, we thought that this order of the Tribunal should be the last that we hear about this case.

But, we were wrong.

The appellant had, in fact, filed a ROM application against this order dated 18.03.2013 but the same was dismissed by the Bench on 17.09.2013.

So, against this dismissal the appellant filed another application seeking restoration of the ROM application on the ground that they had not received the notice of hearing.

The Bench went through the records and thereafter recalled the order dismissing the ROM application. And the matter involved in the ROM was taken up for hearing.

The CESTAT observed that the order dated 18.03.2013 was passed and dictated in Court in the presence of the Counsel appearing for the applicant. Inasmuch as the application for restoration of appeal was dismissed in view of the decision of the Bombay High Court in Kirtikumar Jawaharlal Shah vs. UOI (2011-TIOL-953-HC-BOM-CX) and the earlier Tribunal decision (2009-TIOL-2593-CESTAT-MUM).

The Bench further held that the Tribunal has the power to rectify the mistake which is apparent on record but does not have the power to review. Noting that the applicant had not pointed out the error apparent on record in the order dated 18.03.2013, the Bench dismissed the ROM application as being devoid of merits.

Hopefully, this should be the end of the “cosmetic” saga.

(See 2014-TIOL-281-CESTAT-MUM)