Narsi Dularam Suthar (Kularia) vs Commissioner of Central Excise

We have heard Mr. Prakash Shah appearing on behalf of the Appellants and Mr. Bharati appearing on behalf of the Respondents. The Appellant is aggrieved by the order of the Tribunal, dated 6th July, 2013 refusing to restore Appeal No. E-1344, 1344 of 2000 arising out of the order of original dated 26th February, 2000 to the file of the Tribunal for fresh adjudication and in accordance with law.

There is no dispute that by the order, a copy of which is at Page 41 of the paperbook, these appeals were dismissed for want of prosecution on 9th December, 2009.

The Appellants were compelled to move the applications for restoration of the appeals and at the hearing of the restoration applications though the same contain specific statement that the notice was not served the Tribunal insisted on the affidavit being filed.

We have been shown a copy of the affidavit that is stated to have been filed by the appellants to support the submission that there was no notice received of the date of hearing. Narsi Dularam (Kularia) filed an affidavit and stated that he was partner of one firm M/s. M.M. Furniture from 1st January, 1987 to 3rd December, 2009. The firm stopped its business activities and since 2003 there was no transaction. He recollected of the appeal having filed but stated in paragraph 4 of affidavit that the firms'' premises were closed as the firm stopped the business. The partner Manoharlal Mishra died on 12th May, 2008 and subsequent to his death his widow was inducted in the partnership firm. However, the deponent retired from the partnership and later on the partnership was continued by the wife/widow of the deceased Manoharlal and his son. However, during the period when this deponent was associated with the firm as a partner no letter/notice was received from the Tribunal nor any order was received in this behalf.

We would have expected that when such affidavit is filed on 16th May, 2013 and nothing has been brought on record to the contrary that the Tribunal should have restored the appeals by allowing the restoration applications.

The Tribunal has proceeded to reject the applications for restoration of the appeals by the impugned order with the following observations:--

"5. We find that the appeals were filed by the appellants and a notice for hearing was issued on the address given in the appeal memorandum. Inspite of the notice, none appeared hence the appeals were dismissed vide order, dated 9-12-2009 and the order was also despatched on the address given in the appeal memorandum and the order so despatched was not received back unserved. In view of this, the presumption is that the order was received on the applicants. In view of the above and in view of the decision of the Hon''ble Bombay High Court in the case of Kirtikumar Jawaharlal Shah (supra), we find no merit in the applications and the same are dismissed."

In the light of such order of the Tribunal the appeals are admitted as they raise substantial questions of law. They are admitted on following questions of law :

"(a) Whether in the facts and circumstances of the case the Hon''ble Appellate Tribunal was right in dismissing the Appeal filed by the Appellant for want of prosecution and without going into merits of the case?

(b) Whether in the facts and circumstances of the case, the Hon''ble Appellate Tribunal was justified in not restoring and hearing the appeal of the Appellant on merits?"

With the consent of both Advocates we are disposing of these appeals finally. Once we find that the Tribunal adopted a hyper-technical approach and which was uncalled for and unjustified then the impugned order cannot be sustained. The Tribunal was in error in refusing to restore the appeals and which are pending from the year 2000 on its file. The litigant and his advocate is expected to pursue the proceedings for a reasonable period. If the appeal is not likely to be heard for nearly 10 years and suddenly it is listed for hearing, the expectation would be that if the Advocate and parties are absent one more opportunity is given to them to remain present. This expectation even in today''s e-world is not unreasonable. In such circumstances we would not expect the Tribunal hereafter to reject the requests for restoration of Appeals on the above grounds and to consider them sympathetically by applying liberal principles. With this hope the impugned order is quashed and set aside. The appeals are restored to the file of the Tribunal for being decided afresh on merits and in accordance with law. If the Tribunal lists these appeals for final hearing after a period of eight weeks from today, we would expect the appellants to remain present and argue the appeals and not insist on any adjournment, save and except necessitated by unforeseen circumstances. No order as to costs.