Excise Commissioner’s Order Not Restorable in Absence of Sufficient reason of Non Appearance: CESTAT [Read Order]

In a recent case, the Chennai bench of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that an excise commissioner's order is not restorable in the absence of a sufficient reason for non-appearance.

On the earlier occasions, i.e., for almost 15 occasions, the counsel, either in-person or through proxy had sought adjournments on one ground or the other and for the last two occasions, there was no representation on behalf of the appellant, Siva Industries and Holdings Ltd.

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The Apex Court in the case of Ishwarlal Mali Rathod vs Gopal & Others, while condemning the practice of seeking repeated adjournments has observed, “If plaintiff who seeks eviction decree on the ground of personal bonafide requirement is not getting the timely justice and he ultimately gets the decree after 10 to 15 years, at times cause for getting the eviction decree on the ground of personal bonafide requirement may be defeated. The resultant effect would be that such a litigant would lose confidence in the justice delivery system and instead of filing civil suit and following the law he may adopt the other mode which has no backing of law and ultimately it affects the rule of law. Therefore, the court shall be very slow in granting adjournments and as observed hereinabove they shall not grant repeated adjournments in routine manner. Time has now come to change the work culture and get out of the adjournment culture so that confidence and trust put by the litigants in the Justice delivery system is not shaken and Rule of Law is maintained.”

A Division Bench of the Supreme Court in Benny D'Souza & Ors vs Melwin D'Souza & Ors , heard an appeal wherein the major contention of the appellant was that the High Court should have dismissed the appeal for non-prosecution in terms of the order XLI Rule 17 CPC and particularly the Explanation thereto instead of dismissing the appeal on merits.

The tribunal ruled that the Rule provides that if the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance when the appeal was called for hearing, can set aside the dismissal and restore the appeal. Hence, an opportunity for the appellant to restore the appeal and be heard on merits if sufficient cause is shown for his non-appearance, remains.

Considering the statutory position and the views expressed by the Apex Court in the judgments cited above, adjournments can’t be given for the mere asking without any serious reason, without being backed with proof, for the non-appearance of the appellant or his authorized representative on the dates of public hearing.

While dismissing the appeal, the two member bench of M. Ajit Kumar, Member (Technical), and Ajayan T.V., Member (Judicial) held that no purpose would currently be served in continuing with this appeal and hence reject the same for default as per Rule 20 of CESTAT (Procedure) Rules, 1982.

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