United Breweries Limited vs Commissioner of Central Excise

Rajive Bhalla, J.—Reply filed on behalf of the respondent, in Court today, is taken on record.

The appellant-assessee is before us, impugning order dated 09.05.2013 (Annexure A-5), passed by the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi (hereinafter referred to CESTAT), allowing the appeal filed by the respondent, setting aside the order passed by the Commissioner (Appeals) and as a consequence, restoring order passed by the adjudicating authority.

Counsel for the appellant submits that merits of the case apart, the appellant had entrusted the appeal to a counsel under the bonafide belief that the counsel would defend the appeal filed by the department. The appellant''s counsel, however, did not put in appearance before the Tribunal, on 09.05.2013. The Tribunal apparently annoyed at the large number of adjournments, heard counsel for the respondent-department, allowed the appeal, set aside the order passed by the Commissioner (Appeals) and restored the order passed by the adjudicating authority.

Counsel for the appellant further submits that while it is true that its counsel was negligent, but negligence by the counsel should not visit the appellant with consequences, particularly when the Commissioner (Appeals) had decided the matter in favour of the appellant. It is prayed that as the appellant engaged the services of a counsel, the appellant should not be punished for the absence of its counsel and, therefore, the appeal may be allowed, the impugned order may be set aside and the matter may be restored to the Board of CESTAT, for deciding the appeal after hearing the appellant.

Counsel for the revenue submits that apart from the fact that the appellant has appended an incorrect order of the Commissioner (Appeals), it was for the appellant to ensure the presence of its counsel. The absence of appellant''s counsel did not require the Tribunal to adjourn the case, or to await appearance of the appellant or its counsel. The Tribunal having examined the entire case on merits, the appeal should be dismissed.

We have heard counsel for the parties and perused the impugned order.

Admittedly, the appeal filed by the department was fixed for hearing on 09.05.2013. It also appears that a large number of adjournments had already been granted. It is not denied that counsel for the appellant did not put in appearance on 09.05.2013. The Tribunal, therefore, decided the appeal, on merits, after hearing counsel for the department, reversed the order passed by the Commissioner (Appeals), in favour of the appellant and restored the order passed by the adjudicating authority. While we do not condone the conduct of counsel for the appellant or comment upon the course adopted by the Tribunal, as a Tribunal may always pass an ex-parte order the learned Tribunal should have adjourned the appeal by passing a preemptory order that in case the appellant or its counsel does not put in appearance on the next date, the appeal shall be heard ex-parte. The failure of counsel for the appellant to put in appearance should not visit the appellant with dire consequences.

In view of what has been recorded hereinabove, we allow the appeal, set aside order dated 09.05.2013 and restore the appeal to the Board of CESTAT, subject to payment of Rs.20,000/- as costs to the respondents.

Parties are directed to appear before CESTAT, on 27.11.2014. The appeal be decided within two months from the parties put in appearance on 27.11.2014.