Indam Recycling Co. (P) Ltd. vs Union of India

A. Muhamed Mustaque, J.�Ext. P24 is an order passed by Customs, Excise and Service Tax Appellate Tribunal (CESTAT). This order is a common order passed in an application to restore appeal Nos. 607 to 613 of 2007. The petitioners filed appeal Nos. 607 to 613 of 2007 before the Tribunal challenging orders passed by the 2nd respondent in a proceedings under the Customs Act. The stay application in appeals happened to be dismissed on account of non prosecution on 21-12-2009. Consequent upon dismissal of stay application for non compliance of statutory pre-deposit, appeals were also rejected. Exts.P19 and P20 are orders. Thereafter, petitioners filed application Nos. 44 to 50 of 2012 to restore the appeals. This order was dismissed by impugned order produced as Ext.P24. It is stated in the application filed by the petitioners before the Tribunal that the petitioners had engaged a lawyer from Ernakulam, and he could not appear on account of pre-occupation. The applications for restoration were dismissed on account of reporting no instructions by the counsel appearing for the appellants. There was also delay about three years in filing application to restore the appeals.

Learned standing counsel seriously opposed and submitted that petitioners have an appellate remedy. I do not find any reason to relegate petitioner to appellate remedy when matters are not decided on merits especially when it is happened to be dismissed on account of default and also on account of reporting no instruction by the counsel for the appellants.

In the facts and circumstances, I am of the view that these appeals are liable to be restored as petitioners have serious contentions on merits. The dismissal for non-prosecution arises in extreme situation where parties continuously failed to prosecute appeals. Absolutely, there is no such finding in the matter that appellants were absent on all occasions. On mere absence of one or two occasions shall not deprive the appellants an opportunity to contest the impugned orders on merit. The petitioners also have explained delay in filing applications to restore the appeals. Though averments in the application to explain delay is not at all satisfactory, and there is a justification in observing so in the impugned orders by the Tribunal, however, interest of justice demands matter should be heard on merits.

In view of the discussion as above, Exts.P19, 20 and 24 are set aside, there shall be a direction to the Tribunal to restore the appeal Nos. 607 to 613 of 2007 on file, and also stay application. The petitioners shall appear before the Tribunal on 12-8-2014. After restoring the appeals the Tribunal shall dispose of the appeals as expeditiously as possible, at any rate, within a period of four months subject to the order to be passed in pre-deposit of appeals. The writ petition is disposed of as above.