Whether deciding the case ex parte is correct when authorized representative filed adjournment?

PJ/Case Laws/2012-13/1545

Case:- AMBIKA ENGINEERING WORKS VS UNION OF INDIA

Citation:- 2013(289) E.L.T. 447 (HIGH COURT-Guj.)

Brief Facts:-This writ petition has been filed challenging the order dated 26-12- 2011 passed by Customs Excise and Service Tax Appellate Tribunal, (For short 'CESTAT'), Ahmedabad, by which the petitioner's Stay Application has been decided by the Tribunal on 26-12-2011 in absence of the authorized representative of the petitioner and order dated 6-1-2012 passed by the Tribunal, by which the Stay Application has been partly allowed and the petition has been directed to deposit an amount of Rs. 40,00,000 (Rupees Forty Lacs) within a period of 8 weeks as a pre-deposit for maintaining the Appeal before the Tribunal.

It is not disputed that the petitioner had filed a letter dated 20-12- 2011 before the Tribunal informing that the Chartered Accountant Mr. Hardik P. Shah, was out of station and therefore, he would not be in a position to appear before the Tribunal and, therefore, the matter may be adjourned to some other date. Though, the Tribunal has mentioned this fact in its order, but has refused to adjourn the matter without assigning any proper and cogent reason for not adjourning the matter. The authorized representative of the petitioner was required to be heard in respect of Stay Application and if, he was out of station then adjournment ought to have been granted by the Tribunal to enable him to appear before the Tribunal and argue Stay Application.

In the affidavit-in-reply, this fact is not disputed that Mr. Hardik P. Shah, Chartered Accountant was out of Station on 26-12-2011.

Reasoning of Judgment:- In our considered opinion, the Tribunal has refused to adjourn the mater on 26-12-2012, which has caused great prejudice to the petitioner as the Stay Application could no be argued on merit on behalf of the petitioner and the Tribunal passed ex parte order directing the petitioner to deposit Rs. 40,00,000 (Rupees Forty Lacs) within a period of 8 weeks. The order passed by the Tribunal being contrary to the principles of natural justice, is liable to be quashed as direction is liable to be issued for deciding the Stay Application of the petitioner afresh giving opportunity of hearing to Mr. Hardik P. Shah, Chartered Accountant, who appears on behalf of the petitioner

In the result, this writ petition succeeds and is allowed. The order dated 26-12-2011 passed by Central Excise and Service Tax Appellate Tribunal, Ahmedabad in Application No. E/S/45 of 2011 in Appeal No. E/45 of 2011 is set aside. The Tribunal is directed to fix a date for hearing of the Stay Application and after hearing the authorized representative of the petitioner, shall decide the StayApplication afresh and pass appropriate order in accordance with law. Rule is made absolute accordingly

Decision:- The appeal is allowed

Comment:-The analogy drawn from this case is that the matter should not be decided ex-parte and without giving proper opportunity of hearing when the authorised representative had sought adjournment of hearing for a valid reason depicting his inability to attend the said hearing. Tribunal should not refuse to grant adjournment without assigning any reason.

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PJ/Case Laws/2012-13/1545

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