By TIOL News Service

MUMBAI, MAY 04, 2018: AN application for restoration of appeal and another for condonation of delay in filing the same was filed by the appellant.

The applicant states that the Advocate who was on record had not communicated regarding the proceedings in the Tribunal; that the company is undergoing financial crisis and has been forced to lay off its employees; that production activity has come to halt since June 2016, therefore, filing of the miscellaneous application within 3 months could not be made and there is a delay of 127 days, which may kindly be condoned.

As regard the application for Restoration of Appeal, it is submitted that the same is due to the fault of the Advocate on record who did not appear before the CESTAT for the hearing, reasons for the same are not known to the applicant and resultantly the order was passed ex-parte. Inasmuch as since the submissions made in the appeal were not considered, therefore, the appeal deserves to be restored and heard afresh. It is further informed that in the appellant's own case the issue on merit has been decided in their favour and, therefore, the summary disposal of appeal by order of this Tribunal dated 23.05.2017 is not legal and proper.

The following is the order passed –

"None present for the appellant.

2. Ld. DR brings out that the goods cleared shall be leviable to duty. The goods were cleared at the depot and such depot was the place of removal. Value of clearance from that place of removal at the relevant point of time is consideration to determine the assessable value.

3. Appellant's grievance is that what is cleared from the factory at a value, that shall be the assessable value.

4. The proposition of the learned AR is correct when depot was declared by law to be place of removal. Accordingly, value of clearance made therefrom shall be the assessable value of cleared goods.

5. In view of the settled position of law as stated by the ld. Adjudicating authority in para 7 of his order, appreciating the depot to be the place of removal, his order is confirmed and assessee's appeal is dismissed."

The AR with the support of few case laws submitted that the order of this Tribunal was passed on merit, therefore, even though none appeared on behalf of the applicant the order passed on merit cannot be recalled.

The Bench found the reasons given for the delay in filing the application for restoration of appeal as ‘reasonable' and condoned the same.

After referring to the order dated 23.05.2017 (extracted supra), the Bench observed that the order contained only the submission made by the AR and the grounds of appeal made by the appellant was not touched upon.

The Bench, therefore, concluded that the order did not appear to be a speaking order.

Placing reliance on the apex court decision in Balaji Steel Re-rolling Mills - 2014-TIOL-92-SC-CX-LB where it is held that even in the case of non-prosecution from the assessee the appeal should be disposed of by the Tribunal after considering the appeal filed by the assessee, the CESTAT concluded that the order passed by the Tribunal without considering the grounds of appeal is required to be recalled.

Accordingly the order was recalled and appeal was restored to its original number.

The ROA application was allowed and the matter was posted for regular hearing.

(See 2018-TIOL-1431-CESTAT-MUM)