Full Judgment
2. The Tribunal in its final order dated supra rejected the appeal of the importer. It also rejected two of the three appeals filed by the Revenue but allowed its third appeal seeking enhancement of penalty imposed, Rs. 5 lakhs on the importer to Rs. 1 crore. The importers were M/s La Grande Projects Limited. None represented the respondent as well.
3. The applicant now seeks restoration of the appeal. This application was received on 10/09/04 in the Registry. Nearly 2 years and one month have elapsed from the date of dispatch of the order of the Tribunal.
The Petitioner states that the advocate in whose name a Venkatrama was executed under look to receive all communication addressed to the appellant; the Petitioner heard nothing from his advocate; that on 01/09/2004 he received a communication from the Deputy Commissioner of Customs enclosing a copy of the Tribunal's order; that he did not receive the order of the Tribunal earlier to this date; that the Petitioner should not be held responsible for the negligence of his advocate who failed to communicate with his the then client; that order dated 05/08/02 was passed ex-parte; no notice of hearing sent to the Petitioner and the order dated 05/08/02 should also be stayed pending a decision on the application for restoration. The Ld, Advocate relied on the following case law: (a) Reliance Telecon Ltd [2004 (172) ELT.86.
Tr] wherein the Tribunal held that if the order in original was received on a particular date, the period of limitation should be computed from that date; (b) Escort Limited [2001 (133) ELT 530 (SC)] wherein the Supreme Court held that if a genuine mistake of the appellants' counsel in not being able to attend the proceedings is brought out, an ex-parte decision can be recalled; (c) ETK Softech (P) Ltd [2004 (169) ELT 326] wherein the Tribunal held that the Tribunal had the power to recall an order passed ex-parte if such an order was passed consequent upon the mistake of an advocate and (d) J.K.Synthetics [1996 (86) ELT 472 (SC) ] wherein the Hon'ble Supreme Court held that the Tribunal can restore an appeal decided ex-parte invoking its power under Rule 41 of CESTAT (Procedure) Rules 1982 and not to do so will result in injustice. The Ld. Advocate filed an affidavit purported to have been signed by one B.C. Khan one of the Directors of Petitioner company to the effect that the lady advocate who appeared on their behalf was not appointed by the company and that the company did not receive notice of hearing fixed for 9/10 January 2002.
5. From the records of the Registry it came to light that the impugned order of the Tribunal was dispatched on 08/08/02 bearing an outward No.1049. This order was dispatched to 8 Comoc Street, R. No. 13 & 14, 2nd Floor, Calcutta - 700 017, an address given in the CA.3. The Ld advocate argues that the duly appointed advocate received all communication on behalf of the Petitioner at the relevant time. We observe that no affidavit was filed by the advocate holding Vakalatnama and who appeared before the Tribunal during the hearing of Early Hearing Applications stating that he was not communicating with his client on the developments in the Petitioner's appeal. The Ld advocate seems to be arguing that the advocate failed to communicate with the Petitioner at this late stage only to get out of the fact that the then advocate received notices. It is incomprehensible that the Petitioner was not informed by his advocate of the fact that the appeal was decided by the Tribunal in its order dated 05/08/2002. The various case law cited above speak of circumstances which are entirely different. On the date of hearing a lady advocate was present and heard to be asking for the adjournment. The order itself came to be passed only when the advocate refused to argue on the ground that her client was not cooperating with her. The Ld. Advocate seems to be making an issue that no lady advocate was appointed by his clients on the basis of an affidavit filed by the present Director of the company. The notice of hearing was sent to the advocate Shri V.M. Doiphode clearly stating that the appeal would be heard on 09/01/02. It would have been another matter had the advocate who appeared on that day sought adjournment for any reason other than lack of cooperation from the client. The Tribunal rightly rejected the plea for adjournment and proceeded to decide the case on merits and that too when the advocate refused to proceed with the case. The order of the Tribunal records that the appellant and the respondent (in the appeal filed by the Petitioner and the ones filed by the Revenue respectively) were un-represented when the advocate who stood up in response to the call of the Court Master refused to argue the case. It is doubtful whether in such situations the order can be called ex-parte. Simply because the Tribunal did not record whether or not the lady advocate was authorized to represent the appellant, the advocate cannot argue that the lady advocate was not authorized to appear on behalf of his present clients.
6. In view of what has been discussed above, we find no reason to restore the appeal. None of the averments made before us as to how the Petitioner has not received the order dated 05/08/2002 are satisfactory.