| SooperKanoon Citation | sooperkanoon.com/5224 |
| Court | Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi |
| Decided On | Oct-03-1989 |
| Reported in | (1993)(65)ELT292TriDel |
| Appellant | M.A. Jackson |
| Respondent | Collector of Customs |
Although a notice was issued by the Registry addressed to the applicant as well as to her advocate for hearing of the ROM application posted for 28-4-1989, none appeared on behalf of the applicant. The Tribunal, therefore, after hearing the learned SDR, passed an ex parte order dismissing the ROM application on merits. In the present Misc.
Application, Shri A.K. Jain, learned advocate for the applicant has stated that he could not reach the Court of this Tribunal at 10.15 A.M.for being involved in a minor car accident near Dhaula Kuan and therefore was late in reaching the Court room by forty minutes. It is also stated that on reaching the Court he was informed that the Bench had already passed an ex parte order on the ROM application. In the Misc. Application, now filed by the learned advocate, he has prayed for setting aside the Tribunal's ex parte order and for granting an opportunity of placing the case before the Tribunal.
2. Arguing before us, the learned advocate has stated that the ex parte order passed by the Tribunal on the ROM application can be re-called and a fresh order can be passed after hearing the applicant in view of the judgments of Calcutta High Court in the case of Murlidhar Sarda v.Income-Tax Appellate Tribunal, Calcutta and Ors., reported in (1973) 92 ITR 189 (Cal.) and in the case of Income-Tax Officer, "F" Ward, District IV(2), and Ors. v. Murlidhar Sarda and Anr., reported in (1975) 99 ITR 485 (Cal.). In the case reported in (1973) 92 ITR 189, the Hon'ble Calcutta High Court has held that if in a particular case it appeared to the Tribunal that the opportunity could not have been properly availed of by a particular party as a result whereof the party did not have the opportunity of placing its case before the Tribunal, the Tribunal would have the power to decide the appeal again upon notice to the party or after giving the party an opportunity of being heard. This is a power incidental to or ancillary to the jurisdiction given to the Tribunal. There is no provision against the exercise of such power in the Act or in the Rules nor is the exercise of such power in conflict with any of the provisions or the purpose or the functions of the Tribunal. Hence, where the Tribunal has passed an order in the absence of a party, it would have the power to cancel such an order and rehear the appeal. In the case reported in (1975) 99 ITR 485, the Division Bench of Calcutta High Court held that the Tribunal had inherent jurisdiction, ancillary to the jurisdiction given by Section 254 of the Income-Tax Act, 1961, to restore and rehear an appeal disposed of on the merits in the absence of any party who has been prevented by reasonable and sufficient cause from appearing before the Tribunal at the hearing of the appeal and directed the Tribunal to consider the application for restoration and rehearing of the appeal.
The learned advocate has also relied on a judgment of Kerala High Court in the case of Commissioner of Income-Tax, Tamil Nadu-IV v. Income-Tar Appellate Tribunal and Anr., reported in (1979) 120 ITR 231, in which the Hon'ble High Court held that there was no express provision prohibiting the Tribunal from exercising the power to set aside ex parte order passed by it. The learned advocate has prayed that the Misc. Order No. 40/89-A dated 28-4-1989 may be recalled and the matter be re-decided after giving another opportunity of hearing.
3. We have gone through the records of the case and the arguments of the learned advocate. The aforesaid judgments of Calcutta and Kerala High Courts relate to ex parte decision in the appeals filed before the Income-tax Tribunal. In the present case the appeal was decided by this Tribunal after hearing the appellant (the applicant herein) and what was decided by this Tribunal ex parte is an application filed by the appellant for "rectification of mistakes". In the circumstances, the facts being different, the ratio of the aforesaid judgment of the High Courts is not applicable to the facts of the present case.
4. Further, the ROM application filed by the applicant was dismissed by this Tribunal vide Misc. Order No. 40/89-A dated 28-4-1989 after giving an opportunity to the applicant for a personal hearing. The opportunity could not, however, be availed of by the applicant for the reason stated in the present Misc. Application. In the Misc. Order dated 28-4-1989, the Tribunal has given very cogent reasons for dismissing the ROM application and in doing so the Tribunal has followed the ratio of a judgment of the Hon'ble Supreme Court in the case of T.S. Balaram v. Volkart Brothers, Bombay, reported in AIR 1971 S.C. 2204, the extract from which has been quoted in paragraph 4 of the Misc. Order.
It has been stated in that paragraph that there was no apparent mistake from the record and that the said ROM application for rectification of mistake was for the purposes and in effect a review petition. The Customs Act does not confer on this Tribunal any power to review an order passed by it.
5. In the light of the above, the Misc. Application filed by the applicant does not merit any favourable consideration and hence the same is dismissed.
6. I have perused the order proposed by Shri Mandal, Member (Technical) in C/Mise/212/89-A in C/ROM/7/89-A in appeal No. C/130/88-A. I am unable, with regret, to subscribe to the view expressed by him on the question of applicability of the judgments relied on by the appellant to the order in question.
7. I need not repeat the facts as they are set out in the order of Shri Mandal. Admittedly the ROM was dismissed on 28th April, 1989 not only for non-appearance of the appellant's counsel but also on merits. It is an ex parte order.
8. The present application to set aside the ex parte order is filed on 1st May, 1989 within 2 days of the passing of the order. The reason for his non-appearance when the case was called was, that he met with an accident and, therefore, late by 40 minutes and by the time he reached the Tribunal, the Tribunal already passed the impugned order. These facts were not disputed. Therefore, there was sufficient cause for his non-appearance when the case was called.
9. In my view an order passed ex parte is an ex parte order, whether it is passed in the main appeal or in an application. No distinction can be drawn between an appeal and an application as long as the appeal or the application is decided ex parte. The power of the Tribunal to set aside an ex parte order is not in dispute and it is held to be ancillary or incidental to the exercise of power to decide an appeal or an application under the Act. The object in setting aside the ex parte order is to give the party a reasonable opportunity of being heard, as the impugned order was passed without giving him a reasonable opportunity. The fact that there is no merit in the ROM may not be a ground for not setting aside the ex parte order. Since the ROM was decided without hearing the appellant, and since there was sufficient cause for his non-appearance, the ex parte order in my view is liable to be set aside.
10. I, therefore, allow the miscellaneous application C/Misc/212/89-A in C/ROM/7/89-A in C/A. No. C/130/88-A and direct the ROM to be posted for hearing on merits.
10A. I agree with the view held by Sister S.V. Maruthi, Judicial Member. The Miscellaneous Application is only for setting aside the ex parte order and allowing the appellant an opportunity of being heard without prejudice to the decision to be taken on merits. In complying with the principles of natural justice, the Miscellaneous Application has to be allowed for the purpose of hearing the appellant on the R.O.M. Application on merits.
11. In view of the majority decision, the Misc. application No.C/Misc/212/89-A is allowed and the Tribunal's Misc. Order No. 40/89-A dated 28-4-1989 is recalled. The ROM application be listed for hearing on merits.