By TIOL News Service

MUMBAI, APR 12, 2019: IN the matter of the appeal filed by the assessee against the order of the Commissioner(A), the CESTAT had while dismissing the same held thus -

CX -  Appellants are engaged in manufacture of Plate Heat Exchangers affixed with brand name 'SWEP' and Traps with brand name 'RIFOX' - SCNs were issued seeking to deny the SSI exemption  8/2003-CX  on the ground that the brand name was not owned by them - original authority confirmed the demands but Commissioner (A) dropped the demand relating to the brand name "SWEP" and remanded the matter for computation of duty in respect of the goods bearing brand name 'RIFOX' since the duty demand was a combined one - following the o-in-a, original authority recalculated the duty demand on goods bearing brand name 'RIFOX' - appeal against this duty confirmation was rejected by Commissioner(A) on the ground that since the earlier order-in-appeal was not challenged, the appeal against the confirmation of demand by the adjudicating authority is not maintainable - it was also held that the Appellant in previous round of proceedings had nowhere stated that they used brand name 'Rifox India' and the evidence produced by them before him is afterthought - appeal to CESTAT.

Held:  Reasoning by Commissioner(A) is agreed with - Once the Appellant chose not to file appeal against Order-in-Appeal when the case was decided against them and the matter was remanded to the adjudicating authority only for limited purpose of recalculation of duty demand, they cannot challenge the merits in appeal before Commissioner (Appeals) as the Order-in-appeal has attained finality - Impugned order upheld and appeal dismissed: CESTAT [para 3, 4]

Incidentally, none had appeared for the appellant.

We reported this order dated 11.05.2018 as - 2019-TIOL-822-CESTAT-MUM .

The assessee-appellant has now filed an application seeking restoration of the appeal on the ground that the order no. A/86356/2018 dated 11th May 2018 (supra) of the Tribunal was passed without the applicant having been placed on notice that the adjourned hearing was scheduled for 22nd January 2018. Nonetheless, it is agreed that the order has been passed by considering the grounds of appeal.

The AR informed the Bench that the hearing date had been brought to the notice of both sides during the sitting at which an employee of the appellant was present. It is further contended that ex-parte disposal is permissible under the CESTAT (Procedure) Rules, 1982 and restoration of the appeal that had been disposed of after considering the grounds of appeal would set a precedent that would choke the Tribunal with all manner of claims for relief. Inasmuch as the application should be dismissed, emphasised the AR.

The Bench considered the submissions and inter alia observed -

+ There is endorsement of 'no notice' in the docket sheet.

+ It is also on record that no notice was issued for the hearing and that the present deponent is employee of the appellant who, admittedly, was present in court on the scheduled dates in November 2017 and December 2017.

+ In the docket sheet, we find that the adjournment has been recorded on a rubber stamp template with blanks that have been filled in. It is a convention that dates of the next hearing in appeals, that are called out in seriatim and adjourned, are ordered by the bench in their own hand and also by their own pen which is lacking in the present instance implying that these were noted owing to, and after conclusion of time of sitting.

+ In these circumstances, it is not possible for us to firmly conclude that the direction not to issue notice was an order of the bench and that the adjournment was publicly ordered in court.

+ In a situation such as this, fraught with even an iota of doubt, it is our bounden obligation to the presiding deity of this and every court, that invisible, but undoubtedly abiding, venerable lady in a blind fold and armed with a sword in her left hand, that the balance of the scales in her right hand should never be allowed to teeter.

+ For, if it does, there is every danger of the blindfold being cast aside and the sword raised in vengeance spelling the end of civilization as we know it.

+ A litigant against the State should not, even for a moment, ever doubt that the odds are stacked against him by the ganging up of the very institutions of the State.

+ We would not like to stain the conscience of the entire judicial system by obdurate refusal to admit this plaint. And we believe that we are serving the cause of justice and, indeed of civilized law, even if the appeal has to be heard afresh.

So that there is no whisper that the entire exercise is mere lip service, the Bench directed that, in the interest of justice, the Registry place the matter before a bench not comprising either of the present Division Bench Members, severally or jointly, with due notice, for fresh hearing and disposal. The erstwhile order of the Tribunal was also directed to be placed in a sealed cover in the file before it is placed before the appropriate bench.

The application for restoration of appeal was allowed.

(See 2019-TIOL-1036-CESTAT-MUM)