JUDGMENT Prakash Krishna, J.
1. Heard Shri A.P. Mathur, learned counsel for the petitioner and Shri Subodh Kumar, Learned Standing Counsel for Union of India.
2. The present writ petition has been filed for quashing the order dated 22.11.2001 read with order dated 10.11.1997 passed by Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. E/ROA/199-2000-B in E/4191/89-B.
3. The petitioner filed the aforesaid appeal before Customs Excise and Gold (Control) Appellate Tribunal, New Delhi. The notice for hearing of appeal was issued to the petitioner, but the case was adjourned on the application of the petitioner. After seeking few adjournments the last date was fixed as 10.11.1997. On that date one month's further time was granted to the petitioner. It appears that no firm date was fixed in the appeal and in any view of the matter the petitioner was not informed about the firm date of hearing in appeal. Consequently the Tribunal vide its order dated 10.11.1997 dismissed the appeal in default under Rule 20 of CEGAT (Procedure) Rules, 1982. When recovery was pressed against the petitioner, the petitioner filed an application before the Tribunal for restoration of appeal in September 2000 on the ground that no notice of hearing was received by them. The Tribunal by the impugned order dated 22.11.2001 has dismissed the said application and recorded a finding that the contention of the applicant "that no notice of hearing was served on them has no merit.
4. The petitioner has challenged the aforesaid order. Shri A.P. Mathur has submitted that the Tribunal has taken a very technical view of the matter and the approach of the Tribunal is not justice oriented and in the facts and circumstances of the case one more opportunity should have been given to the petitioner.
Learned counsel for the petitioner has placed reliance upon (1) 1982 UPTC 797, Kailash Rice Mills v. Commissioner of Sales Tax (2) 1987 UPTC 1156, Ilyas Ahmad Body Maker v. CST (3) 1988 UPTC 481, Jai Hind Bhatta v. CST He also placed reliance on the judgment reported in 1987 (13) ECC 27 (SC) : AIR 1987 SC 1353, The Collector Land Acquisition v. Mst. Khatiji and has submitted that notice should have been issued to the petitioner. He sent the adjournment application through post seeking one month's time. But the Tribunal thereafter did not inform the petitioner about the next date fixed.
5. Having heard learned counsel for both sides; I am of the opinion that one more opportunity should have been given to the petitioner, as the petitioner was not afforded proper opportunity of hearing of the appeal. There is nothing on the record to indicate that the order adjourning the appeal and fixing the next date of hearing was passed by the Tribunal on the very date of hearing itself and the adjourned date was not fixed subsequently. The Tribunal has not recorded any finding that the petitioner or its agent was present on the date fixed for hearing, when the matter was adjourned for the last time. The impugned order is a very short order. The Tribunal has failed to record a finding about notice of the date of hearing to the petitioner. Proper finding on the contention of the petitioner that no notice of hearing was issued to the petitioner about hearing of the appeal has not been recorded. Shri Mathur has also expressed his willingness to compensate the department by way of cost. The case was heard yesterday and was adjourned for today on the request of Shri Mathur, to enable him to obtain necessary instruction from his client. Today Shri Mathur after obtaining instruction from his client has made a statement that his client is prepared to deposit rupees ten thousand within two weeks from today as costs. The petitioner is directed to deposit rupees ten thousand by way of bank draft in favour of the Registrar, CEGAT, New Delhi within fifteen days from today and if the said amount is tendered the amount shall be paid to the Additional Collector (now designated as Additional Commissioner), Central Excise, Allahabad forthwith. The petitioner has also given an undertaking that except in some exceptional circumstances no adjournment shall be sought on his behalf and the petitioner shall participate in hearing of the appeal without seeking unnecessary adjournments. In case the petitioner fails to deposit the aforesaid amount the appeal shall not be restored.
6. In view of this the impugned orders dated 22.11.2001 and 10.11.1997 passed by respondent No. 1 are hereby quashed. The appeal filed by the petitioner is restored to its original number with the aforesaid conditions.