By TIOL News Service

MUMBAI, JULY 26, 2009: AN appellant’s representative who tried to get an “appointment” with the Tribunal on a date of his convenience, found the application dismissed.

These are extracts of the order by the President –

“When the matter came up for hearing on 05.05.09 the same was adjourned in the presence of the representative of the applicant to this day. Today a letter is received, addressed to the Assistant Registrar which reads as follows:-

“With reference to above appointment of 12th June 2009 in continuation to my earlier letter dt. 04.05.2009 duly acknowledged by your office on 04.05.2009, I have to reiterate that in my above letter I have already very clearly mentioned that New date of Stay Hearing can be issued after 22nd June 2009 as the undersigned is not available from 1st June ‘2009 to 22nd June ‘2009 but still you have given the appointment of 12th June ‘2009.  Copy of the said letter filed is enclosed.  Hence, once again I request you to give me any suitable date after 22nd June 2009 (and not before that) for hearing of Stay Application.

Inconvenience caused is highly regretted.”

3. It appears that the Chartered Accountant appearing for the appellant is under impression that the proceedings before the Tribunal are in the nature of appointment for meeting with his clients or bureaucratic officers. Otherwise he had no reason to refer in his letter to the dates of hearing as “appointments”.  It also appears that the learned Chartered Accountant is under impression that such hearings are before the Assistant Registrar of the Tribunal.  Apart from hoping that the learned Chartered Accountant would take pains to go through the procedure prescribed for the functioning of the Tribunal, before addressing any such letter we refrain from giving any advise as such in the matter.

4. It has been clearly stated in the letter dated 16.05.09 that “I have already very clearly mentioned that new date of stay hearing can be issued after 22nd June 2009 as the undersigned is not available from 1st June 2009 to 22nd June 2009 but still you have given the appointment of 12th June 2009”. The learned Chartered Accountant is reminded that the dates of hearing are fixed as per the decision of the Tribunal and not at the sweet will of the parties or their representatives, of course, their convenience is certainly considered.  Once the adjournment is granted in the presence of the representative of a party and a specific date is fixed, it is necessary for the party to make necessary arrangements either to appear in person or through its representative on such date.  Merely because the representative of the appellant has chosen to have the hearing of the matter beyond a particular date that is not binding on the Tribunal. Hence the grievance disclosed in the letter of the representative of the appellant is devoid of any substance and on that ground the matter cannot be adjourned any further.”

After going through the records and the submissions of the representative for the Revenue, the Bench observed that there was no prima facie case as such for grant of Stay of the order of the lower appellate authority.

Accordingly, the application for stay was dismissed.

But before that, the Bench also made another interesting observation-

“6. Besides considering the fact that the impugned order has been passed in exercise of power under section 83 of the Finance Act, 1994 read with section 35F of Central Excise Act, 1944, bearing in mind the provisions of law comprised under section 86 which do not refer to the orders passed under Section 83 of the Finance Act to be appealable to the Appellate Tribunal, the maintainability of the appeal itself is in doubt.”

DDT Flashback: From DDT-1073 dated 18.03.2009

DDT spoke to the new President and asked him for a message to the CESTAT family. He said, “Judges don't give messages; they work”. So his work is going to be his message and surely there is plenty of it in CESTAT.

(See 2009-TIOL-1124-CESTAT-MUM in 'Service Tax')