Devon Plastics Ltd. Vs. Collector of Central Excise - Court Judgment

Excerpt:
1. this is an application for rectification of mistake and also a prayer to recall the order of the tribunal dated 8-2-1994 on the ground that the hearing notice was not served on the petitioner herein before the impugned order was passed.2. shri sriram panchu, the learned counsel for the petitioner submitted that this is a case where the department preferred an appeal against the order of the collector of central excise (appeals) madras dated 19-5-1987 before the special bench of the tribunal at delhi bearing no.e/2352/87-c and the special bench by order dated 25-6-1991 transferred the appeal to the south regional bench and also intimated the petitioner herein about the fact of such transfer. while the petitioner was expecting to hear from the south regional bench with reference to the posting of the case and the date of hearing, he did not get any notice. the learned counsel urged that the petitioner has shifted the office from the old address, no. 8, shaffee mohammed road, post bag no.496, madras-6, to no. 30, vankatnarayana road, t. nagar, madras-17 in or about january, 1991. the petitioner was under the impression that since the cegat, delhi has taken note of the new address of the petitioner and intimated the transfer of the file to the south regional bench, the petitioner would get the hearing notice from the tribunal.unfortunately, due to inadvertence, notice of hearing was sent to the petitioner's in the old address, which the petitioner did not receive and subsequently in the above circumstances the tribunal took up the matter and passed order on merits ex parte without hearing the petitioner. the learned counsel therefore submitted that by reason of the fact that the petitioner was not served with a hearing notice, the petitioner did not have an effective opportunity to participate in the proceedings and therefore the tribunal is entitled to invoke what can be called broadly 'inherent powers' for the purpose of doing substantial justice.4. we have gone through the records and considered the submissions made before us. on going through the records we find that in respect of the appeal taken up and disposed of. under the impugned order by the tribunal, the hearing notice had been sent to the party's old address.since the party did not have an opportunity to participate in the proceedings by reason of the fact that hearing notice was not sent to the party, in the interests of justice the impugned order is required to be recalled and the matter decided afresh after affording the petitioner a reasonable opportunity of being heard. it is well settled that in similar circumstances the tribunal is entitled to invoke what is broadly characterised as inherent powers for the purpose of doing substantial justice, and in this context we may usefully refer to the ratio of the ruling of the kerala high court and also the division bench of calcutta high court in the following cases : (i) commissioner of income-tax, tamil nadu-iv v. income-lax appellate tribunal and anr.. (ii) income-tax officer, "f" ward, district iv (2) and ors. v. murlidhar sarda and anr.therefore, following the ratio of the rulings aforesaid and also in the facts and circumstances of the case and in the interests of justice we are inclined to recall the impugned order and posting the matter on 28th august, 1995 for disposal in accordance with law. ordered accordingly.

Judgment:
1. This is an application for rectification of mistake and also a prayer to recall the order of the Tribunal dated 8-2-1994 on the ground that the hearing notice was not served on the petitioner herein before the impugned order was passed.

2. Shri Sriram Panchu, the learned Counsel for the petitioner submitted that this is a case where the Department preferred an appeal against the order of the Collector of Central Excise (Appeals) Madras dated 19-5-1987 before the Special Bench of the Tribunal at Delhi bearing No.E/2352/87-C and the Special Bench by order dated 25-6-1991 transferred the appeal to the South Regional Bench and also intimated the petitioner herein about the fact of such transfer. While the petitioner was expecting to hear from the South Regional Bench with reference to the posting of the case and the date of hearing, he did not get any notice. The learned Counsel urged that the petitioner has shifted the office from the old address, No. 8, Shaffee Mohammed Road, Post Bag No.496, Madras-6, to No. 30, Vankatnarayana Road, T. Nagar, Madras-17 in or about January, 1991. The petitioner was under the impression that since the CEGAT, Delhi has taken note of the new address of the petitioner and intimated the transfer of the file to the South Regional Bench, the petitioner would get the hearing notice from the Tribunal.

Unfortunately, due to inadvertence, notice of hearing was sent to the petitioner's in the old address, which the petitioner did not receive and subsequently in the above circumstances the Tribunal took up the matter and passed order on merits ex parte without hearing the petitioner. The learned Counsel therefore submitted that by reason of the fact that the petitioner was not served with a hearing notice, the petitioner did not have an effective opportunity to participate in the proceedings and therefore the Tribunal is entitled to invoke what can be called broadly 'inherent powers' for the purpose of doing substantial justice.

4. We have gone through the records and considered the submissions made before us. On going through the records we find that in respect of the appeal taken up and disposed of. under the impugned order by the Tribunal, the hearing notice had been sent to the party's old address.

Since the party did not have an opportunity to participate in the proceedings by reason of the fact that hearing notice was not sent to the party, in the interests of justice the impugned order is required to be recalled and the matter decided afresh after affording the petitioner a reasonable opportunity of being heard. It is well settled that in similar circumstances the Tribunal is entitled to invoke what is broadly characterised as inherent powers for the purpose of doing substantial justice, and in this context we may usefully refer to the ratio of the ruling of the Kerala High Court and also the Division Bench of Calcutta High Court in the following cases : (i) Commissioner of Income-Tax, Tamil Nadu-IV v. Income-lax Appellate Tribunal and Anr..

(ii) Income-Tax Officer, "F" Ward, District IV (2) and Ors. v. Murlidhar Sarda and Anr.

Therefore, following the ratio of the rulings aforesaid and also in the facts and circumstances of the case and in the interests of justice we are inclined to recall the impugned order and posting the matter on 28th August, 1995 for disposal in accordance with law. Ordered accordingly.