Healthware Private Limited vs The Customs, Excise & Service Tax Appellate Tribunal and Others

V. Ramasubramanian, J.

This appeal is by the assessee questioning the ex parte decision of the CESTAT passed in an appeal filed by the Revenue.

Heard Mrs. L. Maithili, learned counsel for the appellant and Mr. Haja Mohideen Gisthi, learned counsel for the respondent.

The appellant imported two units of Extracorporeal Lithotripter and filed two bills of entry dated 30.6.2000. The goods were classified by the Department under tariff heading 9018.19. Two DEPB Scrips dated 31.8.1999 and 26.4.2000 were produced in accordance with the Customs Notification No. 34/97. Further, the Director General of Foreign Trade issued a public notice on 7.4.2000, amending para 7.36B of the procedure to the effect that credit under DEPB may be utilised for payment of customs duty and on any item which is freely importable, except capital goods. Therefore, a demand notice for duty was raised upon the appellant to the tune of Rs. 14,80,929/-. The adjudicating authority, however, dropped the demand on the ground that the imported items were not capital goods. But, the said decision was reversed by the Commissioner (Appeals) holding that the goods are capital goods and that the appellant was eligible for the benefit of one of those two DEPB Scrips issued prior to the public notice.

The Revenue filed an appeal to the CESTAT as against that portion of the order which held that the assessee is entitled to the benefit of DEPB scrips dated 31.8.1999. The appeal was filed way back in the year 2004. On 25.9.2014, the appeal was allowed ex parte on the ground that the assessee neither appeared nor filed an application for adjournment. Aggrieved by the ex parte decision so rendered by the CESTAT, the assessee is before us.

In the grounds of appeal, the appellant has indicated the sequence of events atleast from February 2010 upto the date of the decision. The tabular statement filed by the assessee in ground No. 9 of the appeal is reproduced hereunder:--

Mr. Haja Mohideen Gishti, learned Standing Counsel for the Department produced a copy of the mail received from the Department asking him to seek time for filing counter/further instructions from the Section concerned. But, we are of the considered view that in a matter of this nature, where an ex parte decision has been rendered by the Tribunal, the prolongation of a decision on the same is not beneficial to either of the parties. After all, the appellant seeks an opportunity to appear before the Tribunal. It is not recorded in the order of the Tribunal that the appellant herein was habitually absented themselves before the Tribunal. In para 2 of the impugned order, it is just stated that the matter was adjourned on earlier occasions and nobody turned up on behalf of the respondent (assessee). But, it is seen from the tabular column given by the appellant herein that after 3rd September 2013, the date on which the adjournment was sought for by the appellant, the case was taken on two occasions viz., on 24.12.2013 and 25.9.2014 and the Tribunal rendered the decision. Therefore, we are of the considered view that one opportunity can be granted to the appellant, especially, in view of the fact that the benefit granted to the appellant by the Commissioner (Appeals) was confined only to one of the scrips, that was issued prior to the public notice issued by the DGFT.

In view of the above, the civil miscellaneous appeal is allowed. The order of the Tribunal is set aside and the matter is remitted back to the Tribunal. The appellant shall, without fail, appear before the Tribunal on the date indicated by the Tribunal without seeking any adjournment as the appeal is a very old one. The Tribunal shall dispose of the appeal within a period of two months from the date of receipt of copy of this order. No costs. The connected miscellaneous petition is closed.