NOEL AGRITECH LTD. Vs. COMMISSIONER OF CUSTOMS, MANGALORE

JUDGEMENT

(1.) THE applicants have filed an application for recall of Final Order No. 1887/2005 dated 11 -11 -2005 [2006 (195) E.L.T. 88 (Tri. - Bang.)], passed by this Bench along with an application for condonation of delay in filing the above application.

(2.) S /Shri K. S. Ravi Shankar, Naveen Kumar and Dakshina Murthy, learned Advocates appeared for the applicants. It was submitted that the above mentioned Final Order has been passed ex parte. The appellants shifted to a new place in Mumbai and consequently their address mentioned in the cause title also changed. They intimated the postal authorities about the change of address on 9 -9 -2003 and requested the postal authority to deliver the letter addressed to the applicants to their new address. The Tribunal disposed of the stay application filed against Adjudication Order No. 5/2003 -04 dated 3 -2 -2004 vide Stay Order No. 497/2005 dated 17 -6 -2005 granting full waiver of pre -deposit and stay of recovery of duty. The above mentioned stay order was not received by the applicant though the Tribunal recorded that the notices were issued to the appellants 5 times. The stay order itself has fixed the date of final hearing on 5 -10 -2005. Since the stay order was not received they could not appear on 5 -10 -2005. On 11 -11 -2005, the appeal was disposed of ex parte. In the above mentioned Final Order, the appeal was allowed to the extent of duty with interest and penalty was set aside and redemption fine was reduced to Rs. 10 lakhs. They came to know about the passing of Final Order only after Mr. J.M. Bangera, Managing Director of the Company received intimation from the Department by its letter dated 13 -3 -2006, calling upon him to pay the adjudication levy in the Adjudication Order. The appellants collected the stay Order dated 17 -6 -2005, hearing notice dated 19 -1 -2005 and Final Order dated 11 -11 -2005 only on 20 -4 -2006 from the Registry of the Tribunal. The Notices and the stay order were not received by them despite instructing the postal authority to deliver the same to the new address. Therefore they could not appear for hearing either in person or thorough the Counsel. Moreover, the Tribunal did not consider the effect of series of decisions rendered under similar facts and circumstances : -

(3.) THE learned JDR urged the following points : -