Whether appeal be restored for their dismissal due to non prosecution by appellant on several occasions?

PJ/Case Laws/2012-13/1386

Case: - SHRI CHARLES PATRICK, M/s PETROSOLV (I) CO, SHRI CHARLES PATRICK Vs COMMISSIONER OF CUSTOMS (IMPORT), NHAVA SHEVA

Citation: - 2012-TIOL-1946-CESTAT-MUM

Brief facts: - The brief facts of the case are that the appellant have been out of business since 2005 and not been able to revive their business and had engaged on employee to receive communication from various places including the Government departments. Since the said employee could not get salary on time, he did not inform the appellants; therefore, they were not aware of notice of hearing on 30.03.2012 and hence could not be present. These applications are for restoration of appeals, which are in the context of the order passed by this Tribunal vide Order no. A/275-282/2012/WZB/CSTB/C-I dated 30.03.2012. In the said order, this Tribunal observed that "none appeared on behalf of the applicants nor any request for adjournment has been received. On perusal of the record, it is observed that the matter has been listed on several occasions earlier also. The conduct of the appellants shows that they are not interested in pursuing the appeals, therefore, the application for stay as well as appeals are dismissed for non-prosecution."

Appellant’s Contention: - The learned counsel for the applicants submits that in view of the reason that their employee did not inform them regarding hearing letters, they were unable to attend the personal hearing on 30.03.2012 and, therefore, the appeal be restored.

Respondent’s Contention: -Here the respondent contended that in this case, it has been observed that the non-representation of the appellants is not restricted to 30.03.2012 only. The case has been listed several times earlier on 19.12.2011, 20.01.2012 and 30.03.2012 was given as a last chance. Therefore, it is not a case for non-appearance on single occasion but on several occasions. Therefore, the explanation given by the appellant is not convincing as to why they were not represented on earlier occasions.

Reasoning of Judgment: -Since the case has been dismissed for non-prosecution, the Tribunal are of the view that the applications for restoration should be considered only on cost basis. Accordingly, it is directed to the appellants to pay a cost of Rs.5000/- for each of the appeals and remit the same to the credit of the Commissioner of Customs (Import), Nhava Sheva within four weeks and report compliance on 15.01.2013. On such compliance, the appeals and stay applications shall be restored to their original numbers. The miscellaneous applications are disposed of in the above terms.

Decision: - The applications are allowed on costs.

Comment:- The analogy drawn from this case is that for restoration of appeal application, sufficient and convincing reasons are to be required if dismissal is being done other than non compliance, otherwise restoration is possible only on cost basis.

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PJ/Case Laws/2012-13/1386

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