Soumitra Pal, J. - (1.) LET affidavits of service affirmed on 12th November, 2008 and 12th December, 2008 and the supplementary affidavits filed in Court today be kept with the record. This writ petition has been filed challenging the order dated 7th/9th July, 2008 passed by the learned Customs, Excise & Service Tax Appellate Tribunal East Regional Bench, Kolkata on the ground that the date on which the matter was heard and order was passed was neither pronounced at the time of previous hearing nor notice was issued. Thus, petitioner could not appear on the day when order was passed. It appears that the petitioner had filed an application for recalling and/or, modification and/or amendment of the order dated 7th/9th July, 2008 passed by the Tribunal. During the pendency of the writ petition, as evident from the supplementary affidavit, the Tribunal by order dated 23rd September, 2008 [2011 (264) E.L.T. 554 (Tri. -Kol.)] had rejected the application for modification of the order dated 7th/9th July, 2008 except modifying the time allowed for making the pre -deposit and modifying the date for reporting compliance. The grievance of the petitioner is that while passing the order dated 23rd September, 2008 the Tribunal did not consider the statements in the application for recalling the order dated 7th/9th July, 2008 particularly in paragraph 3 thereof. Submission is that the reply to the show cause notice was not effective as it is evident from the letter dated 27th June, 2008 issued by the Senior Intelligence Officer that the photocopies of the documents mentioned therein were supplied on that date. Thereafter, the Tribunal by an order dated 27th November, 2008 had dismissed the appeal for non -compliance of the provisions of Section 35F of the Central Excise Act, 1944. It has been recorded in the said order dismissing the appeal that the appellants are at liberty to mention the matter after the decision of the High Court.
(2.) LEARNED senior advocate appearing on behalf of the petitioners submits that it is evident from the order dated 23rd September, 2008 that the statements made in the application particularly in Paragraph 3 were not considered. Moreover, the Tribunal ought to have taken into consideration the letter dated 27th June, 2008 issued by the Senior Intelligence Officer. Learned advocate appearing on behalf of the respondents submits that the order passed is just and proper.
(3.) PERUSING the order dated 23rd September, 2008 I find that the Tribunal has not gone into the statements made in the application for recalling the order dated 7th/9th July, 2008 particularly in Paragraph 3. The Tribunal also did take note of the letter dated 27th June, 2008. Since the Tribunal did not deal with the statements made in the application for recalling the order dated 7th/9th July, 2008 particularly in Paragraph 3 as well as the letter dated 27th June, 2008 issued by the Senior Intelligence Officer of the Director General of Central Excise Intelligence, in my view, the order dated 23rd September, 2008 cannot be sustained and is, thus, set aside and quashed.;