Restoration of appeal which has been dismissed on giving Ex-parte decision

PJ/CASE LAW/2015-16/2998

Case-MAHESHWARI MILLS Versus COMMISSIONER OF CENTRAL EXCISE, INDORE

Citation-2015 (40) S.T.R. 566 (Tri. - Del.)

Brief Facts-This is a miscellaneous application for restoration of the appeal No. ST/672/2008 filed by the appellant which had been dismissed ex parte vide Final Order No. 51038/2014, dated 21-2-2014. At the time of hearing of the appeal on 21-2-2014, when this matter had been called, none representing the appellant had appeared.

Appelants Contention-Shri Jatin Singhal, Advocate, ld. Counsel for the appellant pleaded that prior to its hearing on 21-2-2014, the matter had been listed for hearing on various dates, i.e. 9-7-2013, 16-8-2013, 17-10-2013 and 12-12-2013 and each time though the appellant was present, the matter was adjourned as the case did not reach for hearing; that after 20-12-2013, no notice for hearing was received by the appellant and only after receipt of the order dated 21-2-2014 on 27-3-2014, the appellant learnt that their appeal has been dismissed ex parte, that non-receipt of the hearing notice was the only reason for the appellant’s failure to cause appearance on 21-2-2014; that appellant have good case on limitation as well as on merit but since the appeal was heard ex-parte, then points were not considered and that in view of this, final order dated 21-2-2014 dismissing appeal may be recalled and the appeal may be restored and heard afresh.

Respondents Contention-Shri Govind Dixit, ld. Department Representative, opposed the restoration application pleading that notice for adjourning the matter to 21-2-2014 had been issued by the Registry on 8-1-2014 by RPAD; that the communication about date of hearing sent on 8-1-2014 by RPAD has not been returned undelivered, and that in view of this, it has to be presumed that the communication regarding date of hearing had been received by the appellant. He also pleaded that final order dated 21-2-2014 had been passed after considering the merits of the case and is covered by the Larger Bench Judgment of the Tribunal in the case of Shri Bhagwati Traders v. C.C., Kochin reported in 201l (24) (S.T.R.) 290 (Tri.-LB). He pleaded that in the circumstances of this case, the extended limitation period has been correctly invoked and that since the matter has been decided after considering the merits of the case there would be no justification for recalling final order and restoration of the appeal for the final hearing. He therefore pleaded that there is no case for recalling final order dated 21-2-2014 and restoring will appeal for fresh hearing.

Reasoning Of Judgement-We have considered the submissions from both sides and perused the records. From the records, it is clear that prior to 21-2-2014, this matter had been listed for hearing on 20-12-2013 and at that time this matter had been adjourned to 21-2-2014 and the notice in this regard had been issued by Registered post with acknowledgement due on 17-1-2014. There is no document on record to indicate that the notice was not delivered by the postal authorities and was returned undelivered. Once notice for hearing has been issued to an appellant by RPAD in accordance with the provisions of Section 37C of the Central Excise Act 1944, it has to be presumed that the notice has been received by the appellant and if the appellant disputes the receipt of the notice,

burden is on him to produce positive evidence regarding non-receipt. Since no such evidence has been produced, the appellant’s plea that the notice was not received cannot be accepted. In view of this, miscellaneous application for restoration of appeal is dismissed.

Decision-Application dismissed

Comment-If the noticeof hearing is sent by registered AD post to the assessee, and the same is not returned or either undelivered or unserved then also service of notice complete. And, this is the valid presumption of receipt of notice by applicant. The burden of proving the non-receipt of notice is on assessee. And, therefore on this ground the appeal is dismissed and the department is correct in giving ex-parte decision.

Prepared By-Neelam Jain

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PJ/CASE LAW/2015-16/2998

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