- (1.) HEARD Shri A.P. Mathur, learned counsel for the appellant and Shri B.K.S. Raghuvanshi for the Department. This appeal has been filed under Section 35G of the Central Excise Act, 1944 which has been admitted on the following two questions: (i) Whether on the facts and circumstances of the case the Hon'ble Tribunal is justified in not restoring the appeal to its original number which stands dismissed on account of default on the part of the Advocate who on account of miscalculation attended another case taken up in the Hon'ble High Court instead of the Appeal in question before the Hon'ble 'Tribunal. (ii) Whether the Hon'ble Tribunal is justified in not restoring the Appeal to its original number when there is no finding that adjournments were sought in the part for delaying the hearing of the appeal coupled with the fact that the interest of the revenue is fully secured as the demand raised already stands deposited much prior to the issuance of the show cause notice.
(2.) BRIEF facts necessary for deciding the appeal are : The appeal was fixed for hearing on 8 -4 -2010 before the Tribunal. 'The appeal was called out in the earlier part of the day and on a request made by the learned Advocate that he was busy before the Hon'ble Single Bench, the matter was kept back. Subsequently it was again called out at 3.25 P.M. No one appeared, hence the appeal was dismissed in default. On the same day the learned counsel for the appellant filed an application for restoration praying for hearing of the matter. It was mentioned that when the case was first passed over there were 23 more items to be heard for which adequate time was not available in the afternoon "hence the learned counsel who was appearing in the appeal rushed to the High Court in the afternoon when another matter which was passed over in the High Court in the forenoon was called for hearing, hence he could not reach back to the Tribunal from the High Court when the matter was called out. The restoration application has been rejected by the Tribunal holding that no sufficient cause has been disclosed for the absence of the appellant or his Advocate on the relevant day and time. Learned counsel for the appellant submits that the appellant was not negligent in prosecuting the appeal and it was due to the fact that the learned counsel for the appellant had to rush to the High Court, therefore, no one could appear at 3.25 P.M. when the appeal was called out. Earlier when the case was listed for hearing, learned counsel for the appellant was present however the case could not be decided. He submits that there was a bona fide reason for not appearing when the case was called out for the second time and the Tribunal ought to have recalled the matter and heard the matter on merits.
(3.) WE have considered the submissions of the learned counsel for the parties and have perused the record.;