LexM/S. J.K. SYNTHETICS LTD. versus COLLECTOR OF CENTRAL EXCISE
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f M/S. J.K. SYNTHETICS LTD. v. COLLECTOR OF CENTRAL EXCISE AUGUST 28, 1996 [S.P. BHARUCHA AND KS. PARIPOORNAN, JJ.] Customs, Excise a11d Gold (Control) Appellate Tribu11al (Procedure) Rules, 1982. A B Rules, 20, 21 and 41-Appeal-Hearing of-Depa1tmental repre- C se11tative heard-Other party not present:-Decided ex-parte against the pmty-By the time message regarding co11nsel held up elsewhere and reach soon conveyed, Bench had 1ise11-Vice-President requested to recall the ex- palte order and then hear appeal on me1its-Application filed-Tribunal rejecting the application-On appeal held, CEGAT to consider i11 each case whether the pa1ty who applies for recall of expalte order against him had D sufficient ca11se for remaining absent--lf it is satisfied that there was sufficient ca11se CEGA T to set aside the expalte order, restore the appeal and hear it afresh on merits. Commissioner of Income-Tax, Madras v. S. Chenniappa M11dalia1; 74 E ITR 41; Income Tax Officer, Cannore v. M.K. Mohammed Kunhi, 71 ITR 815 & G1indlays Bank Ltd. v. Central Government Industrial Trib1111al & Ors., [1981] 2 SCR 341, referred to. S11therland's Statutory Constmction, Third Edition, Domat's Civil Law, Volume I & Maxwell on Inte1pretation of Statutes, 11th Edn., referred to. F CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3849 of 1988. From the Judgment and Order dated 21.4.88 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in A.No. E/Misc. G 355/87-C in Appeal No. E.D./SB/590 of 1984-C. !ant. Ravinder Narain, Ms. Amrita Mitra for JBD & Co. for the Appel- Joseph Vellappally and V.K. Verma for the Respondent. 295 H 296 SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R. A The following Order of the Court was delivered : B c The appellant had filed a refund claim which was rejected by the Assistant Collector or Central Excise. The appellant filed an appeal before the Collector (Customs) and the appeal was allowed. The respondent, the Collector of Central Excise, filed an appeal there against before the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT). The appeal was on board for hearing on 31st August, 1987. When the appeal reached hearing, the appellant (before us) was not represented. CEGAT heard the departmental representative in support of the appeal and decided it ex-parte against the appellant on merits. At about 11.30 A.M. on the same day CEGAT was told that the counsel for the appellant had been held up and would soon reach CEGAT. The informant was told that the appeal had already been heard and disposed of. The bench having risen, the counsel for the appellant met the Vice President of CEGAT in his chambers and, explaining why he had been held up, requested that the D ex-parte order on the appeal be recalled and the appeal be heard on merits. The counsel was told, very rightly, to put his request in writing. An application in this behalf was filed. When the application was heard, learned counsel for the appellant stated what had delayed him, relied upon Rule 41 of the CEGAT (Procedure) Rules, 1982, and prayed for recall of E F the order dismissing the appeal on merits. The learned departmental representative representing the respondent, "while submitting that he would have to objection to the order being recalled, stated that the Tribunal, in view of Rules 20 and 21 of CEGAT (Procedure) Rules, 1982, had no power to recall or set aside such an order passed on merits in absence of the respondents". CEGAT considered the provisions of Rules 20 and 21 and of Rule 41. It observed that it could be seen from Rules 20 and 21 that whereas the proviso to Rule 20 provided for restoration of an appeal dismissed in default on sufficient cause being shown, there was no such provision with respect to an appeal heard ex-parte in the absence of the respondent to it under Rule 21. CEGAT noted the nature and true character of the order which it passed. It noted the decision of this Court G in Commissioner of Income-Tax, Madras v. S. C/1e1111iappa Mudaliar, 74 ITR 41. It found that where a respondent had not availed of the opportunity to put forward his case, CEGAT was not absolved of its responsibility to decide. It held : H "Therefore, even if respondent was not present when the appeal \ I J J.K. SYNTHETICS LTD. v. COLLECTOR OF CENTRAL EXCISE 297 was called for hearing, would not absolve the Tribunal from decid- A ing the appeal on merits on
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