KIRTILAL KALIDAS DIAMOND EXPORTERS Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THIS is an application under Rule 41 of the CEGAT (Procedure) Rules, 1982 seeking to recall the order of the Tribunal No. 205/1988, dated 12-4-1988.

(2.) Order No. 205/1988 of the Tribunal was passed in Customs Appeal Nos. 487 to 489/1987 filed by the Collector of Customs, Madras, in which the present petitioner herein was the Respondent. The hearing of the said appeals before the Tribunal was posted to 12-4-1988 in regard to which notice to the petitioner herein had been sent as per law. The petitioner herein, who was Respondent in the said Appeals, was not present on the date of hearing nor had he sought for adjournment of the hearing. In the result the Tribunal after hearing the Senior D.R. for the appellant viz. the Collector of Customs, Madras, disposed of the appeals on merits. The petitioner herein aggrieved by the said order of the Tribunal has filed the present application seeking to recall the order of the Tribunal.

(3.) THE learned senior counsel further submitted that though the Tribunal had disposed of the appeal on merits the Tribunal would be well within its jurisdiction in setting aside that order and reposting the appeals for disposal on merits in terms of Rule 41 of the CEGAT (Procedure) Rules, 1982 to secure the ends of justice. THE learned counsel placed reliance on the ruling of the Supreme Court in the case of Income-tax Officer, Cannanore v. M.K Mohammed Kunhi, reported in 1969 (71) I.T.R. 815. THE learned senior counsel also placed reliance on the ruling of the Tribunal in the case of Comexco, Bombay v. Collector of Customs, Madras, decided on 5th April, 1984 in M.A. (MAS) No. 18/83 in A.No. CD(T) (MAS) 89/80. It was urged that the ruling of the Supreme Court cited supra was also relied upon by the Kerala High Court in the case of Commissioner of Income-tax, Tamil Nadu-IV v. Income-tax Appellate Tribunal and Anr., reported in 1979 (120) I.T.R. 231, wherein the Division Bench of the Kerala High Court has taken the view that though no specific provision was made in the Rules to enable the Income-tax Appellate Tribunal to set aside an ex parte order passed on merits the Income-tax Appellate Tribunal must be presumed to have such power under Section 254(1) of the Income-tax Act, 1961 for setting aside the ex parte order in the interests of justice.