Prajyot Enterprises vs Union of India

This Appeal challenges the order passed by the Tribunal on 29-10-2013 and subsequently on 13-12-2013. By the first order, the Tribunal ex parte decided an application for waiver of pre-deposit and stay. It is the submission of the learned counsel appearing for the Appellant that a substantial question of law would arise inasmuch as the Tribunal not only proceeded ex parte in the absence of the Advocate, but also did not take note of the request in writing made by the Appellant''s Advocate appearing before the Tribunal that the date and time, namely, 29-10-2013 is inconvenient, for him on account of his personal difficulty. If such written communication is addressed to the Registry of the Tribunal and is taken on record, then, the Tribunal ought to have taken note of the contents of the said communication and could not have proceeded ex parte. In fact the position is that the matter was adjourned once because of non-availability of the Bench itself and on second occasion, the Department sought time. It is only on one occasion that the Appellant and his Advocate were not present. In these circumstances while passing an order or direction to deposit the duty demanded partially and by expressing an opinion on merits of the controversy, the Tribunal has committed a serious error in law. The Tribunal''s order results in grave miscarriage of justice.

The request then made is that the Tribunal proceeded on the footing that the application to rehear the matter is some sort of review. That was not permissible. In effect and essence, the application was seeking modification of the earlier order and in any event if the Tribunal''s power to recall its own ex parte order was invoked, then, the Tribunal ought to have considered the matter from a different perspective and in the larger interest of justice ought to have recalled its earlier order.

Mr. Bhate, learned counsel appearing for the Respondents, submits that these are all delaying tactics and without depositing anything and in compliance with the Court''s order, a fresh opportunity is sought to argue the stay application and that does not deserve to be granted. There is no question of law much less substantial one arising for consideration and determination in this Appeal. Resultantly, the Appeal should be dismissed.

We have heard the learned counsel appearing for the parties and perused the orders under challenge. We have also perused the Appeal paper book. We find that the substantial question of law which arises in this Appeal is, whether the Tribunal in the given facts and circumstances and in view of the written request for postponement of date on record, erred in proceeding ex parte and passing an order on merits?

We find that this approach of the Tribunal was, in the peculiar facts and circumstances, not justified. The Tribunal could have placed the matter on any other date, but with clarification that it would not be postponed or adjourned further on any ground. Once the absence of the Advocate results in grave loss and serious prejudice to a litigant, then, the Tribunal should have, in the larger interest of justice, not passed any orders in the absence of the Advocate or Appellant. The amount of pre-deposit of Rs. 5 lacs is the direction issued after expressing an opinion on merits of the controversy. All this, in the absence of the Advocate in the given facts and circumstances, was uncalled for.

After hearing the learned counsel appearing for the parties on this point, we are of the view that the Tribunal''s calendar need not be disturbed and by this Court interdicting on every such occasion. However, once the Advocates assure that on the date and time assigned, they would both appear and not seek any adjournment or accommodation, but proceed to argue the stay application or waiver application that we accede to the request of the learned Counsel.

In the result, the impugned orders are quashed and set aside, but on the condition that the Appellant pay costs quantified at Rs. 25,000/- (Rupees Twenty Five Thousand) to the Respondents. The costs shall be paid within a period of two weeks from today. The parties are put to notice that the matter will be taken up by the Tribunal on 24th March, 2014 at 10:30 am. The Appellant or his Advocate shall appear on that date and proceed to argue the application on merits. In the event they remain absent, earlier orders of the Tribunal would stand and then the appeal filed by the Appellant need not be revived by the Tribunal. In the event they appear on the given date and time, the Tribunal shall take up the application afresh and pass a fresh order in accordance with law, but uninfluenced by the earlier findings. All contentions of both sides and on merits of the application are kept open. The Tribunal shall take up the matter on a proof of payment of costs being produced. The Appeal is, accordingly, disposed of.