Case Law Details
Hello Mineral Water (P) Ltd. Vs Commissioner of Central Excise (CESTAT Allahabad)
CESTAT Allahabad held that in terms of rule 20 of CESTAT (Procedure) Rules, 1982 in case appellant doesn’t appeal when the appeal is called on for hearing, the Tribunal may, dismiss the appeal for default.
Facts- The issue involved herein is that when the matter was called none appeared on behalf of the appellant. Matter has been earlier listed on 27.09.2019, 29.01.2020, 18.02.2020, 05.08.2022 and on 20.07.2023. On each of the occasions either appellant/ counsel has chosen to abstain from hearing. Only when the matter was listed on 27.09.2019, a written request for adjournment was received. No request for adjournment also has been received on any subsequent dates.
Conclusion- Rule 20 of CESTAT procedure for dismissal of appeal for non prosecution where on the day fixed for the hearing of the appeal or on any other day to which such hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Tribunal may, in its discretion, either dismiss the appeal for default or hear and decide it on merits.
Appeal is dismissed in terms of Rule 20 of CESTAT Procedure for the non prosecution.
FULL TEXT OF THE CESTAT ALLAHABAD ORDER
When the matter was called none appeared on behalf of the appellant. Matter has been earlier listed on 27.09.2019, 29.01.2020, 18.02.2020, 05.08.2022 and on 20.07.2023. On each of the occasions either appellant/ counsel has chosen to abstain from hearing. Only when the matter was listed on 27.09.2019, a written request for adjournment was received. No request for adjournment also has been received on any subsequent dates.
2. Sub Section 1A to Section 35C of the Central Excise Act, 1944 reads as follows:-
“(1A)The Appellate Tribunal may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing :
Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.”
3. In terms of proviso to the said sub section, CESTAT could have not granted adjournment more than three times to a party during the hearing of appeal. Even for adjourning the matter reasons have to be recorded in writing. In absence of any appearance or request for adjournment even the requirement of recording the reason for granting adjournment can be recorded.
4. Hon’ble Supreme Court has in the case of Ishwarlal Mali Rathod v. Gopal, Special Leave to Appeal (C) No(s). 1411714118/2021, order dated 20.09.2021, observed as follows:-
“12. The proceedings in the second appeal before the High Court, if we allow ourselves to say so, epitomises the corrosive effect that adjournments can have on a litigation and how a lis can get entangled in the tentacles of an octopus. The philosophy of justice, the role of a lawyer and the court, the obligation of a litigant and all legislative commands, the nobility of the Bench and the Bar, the ability and efficiency of all concerned and ultimately the divinity of law are likely to make way for apathy and indifference when delay of the present nature takes place, for procrastination on the part of anyone destroys the values of life and creates a catastrophic turbulence in the sanctity of law. The virtues of adjudication cannot be allowed to be paralysed by adjournments and non demonstration of due diligence to deal with the matter. One cannot be oblivious to the feeling necessities of the time. No one can afford to sit in an ivory tower. Neither a Judge nor a lawyer can ignore “the total push and pressure of the cosmos”. It is devastating to expect infinite patience. Change of attitude is the warrant and command of the day. We may recall with profit what Justice Cardozo had said: “It is true, I think, today in every department of the law that the social value of a rule has become a test of growing power and importance.” [Benjamin N. Cardozo, The Nature of Judicial Process (Cosimo Inc.,2009) 73]
13. It has to be kept in mind that the time of leisure has to be given a decent burial. The sooner it takes place, the better it is. It is the obligation of the present generation to march with the time and remind oneself every moment that the rule of law is the centripodal concern and delay in delineation and disposal of cases injects an artificial virus and becomes a vitiating element. The unfortunate characteristics of endemic delays have to be avoided at any cost. One has to bear in mind that this is the day, this is the hour and this is the moment, when all soldiers of law fight from the path. One has to remind oneself of the great saying, “Awake, Arise, ‘O’ Partha”.
14. The anguish expressed in the past and the role ascribed to the Judges, the lawyers and the litigants is a matter of perpetual concern and the same has to be reflected upon every moment. An attitude of indifference can neither be appreciated nor tolerated. Therefore, the serviceability of the institution gains significance. That is the command of the Majesty of Law and none should make any maladroit effort to create a concavity in the same. Procrastination, whether at the individual or institutional level, is a systemic disorder. Its corrosive effect and impact is like a disorderly state of the physical frame of a man suffering from an incurable and fast progressive malignancy. Delay either by the functionaries of the court or the members of the Bar significantly exhibits indolence and one can aphoristically say, borrowing a line from Southwell “creeping snails have the weakest force” [Robert Southwell, “Loss in Delay”, in William B. Turnbull (Ed.), The Poetical Works of the Rev. Robert Southwell (John Russell Smith, London 1856), p. 60.] .
Slightly more than five decades back, talking about the responsibility of the lawyers, Nizer Louis had put thus:
“I consider it a lawyer’s task to bring calm and confidence to the distressed client. Almost everyone who comes to a law office is emotionally affected by a problem. It is only a matter of degree and of the client’s inner resources to withstand the pressure.” [ Nizer Louis, My Life in Court (Doubleday & Co. Inc., New York 1961), p. 213]
A few lines from the illustrious Justice Frankfurter is fruitful to recapitulate:
“I think a person who throughout his life is nothing but a practising lawyer fulfils a very great and essential function in the life of society. Think of the responsibilities on the one hand, and the satisfaction on the other, to be a lawyer in the true sense.” [Felix Frankfurter, “Proceedings in Honor of Mr. Justice Frankfurter and Distinguished Allumni, Occasional Pamphlet No. 3” (Harvard Law School, Cambridge, 1960), pp. 45]
28. In a democratic setup, intrinsic and embedded faith in the adjudicatory system is of seminal and pivotal concern. Delay gradually declines the citizenry faith in the system. It is the faith and faith alone that keeps the system alive. It provides oxygen constantly. Fragmentation of faith has the effect potentiality to bring in a state of cataclysm where justice may become a casualty. A litigant expects a reasoned verdict from a temperate Judge but does not intend to and, rightly so, to guillotine much of time at the altar of reasons. Timely delivery of justice keeps the faith ingrained and establishes the sustained stability. Access to speedy justice is regarded as a human right which is deeply rooted in the foundational concept of democracy and such a right is not only the creation of law but also a natural right. This right can be fully ripened by the requisite commitment of all concerned with the system.
It cannot be regarded as a facet of Utopianism because such a thought is likely to make the right a mirage losing the centrality of purpose. Therefore, whoever has a role to play in the justice dispensation system cannot be allowed to remotely conceive of a casual approach.”
5.4 In the aforesaid decision, this court also considered the role of advocate in the justice delivery system and considered the earlier decisions in paragraphs 17 to 22 which read as under: “17. In Ramon Services (P) Ltd. v. Subhash Kapoor [(2001) 1 SCC 118 : 2001 SCC (Cri) 3 : 2001 SCC (L&S) 152 : AIR 2001 SC 207] , after referring to a passage from Mahabir Prasad Singh v. Jacks Aviation (P) Ltd. [(1999) 1 SCC 37 : AIR 1999 SC 287] , the Court cautioned thus : (Ramon Services case [(2001) 1 SCC 118 : 2001 SCC (Cri) 3 : 2001 SCC (L&S) 152 : AIR 2001 SC 207] , SCC p. 126, para 15)
“15. … Nonetheless we put the profession to notice that in future the advocate would also be answerable for the consequence suffered by the party if the nonappearance was solely on the ground of a strike call. It is unjust and inequitable to cause the party alone to suffer for the self imposed dereliction of his advocate. We may further add that the litigant who suffers entirely on account of his advocate’s non appearance in court, has also the remedy to sue the advocate for damages but that remedy would remain unaffected by the course adopted in this case. Even so, in situations like this, when the court mulcts the party with costs for the failure of his advocate to appear, we make it clear that the same court has power to permit the party to realise the costs from the advocate concerned. However, such direction can be passed only after affording an opportunity to the advocate. If he has any justifiable cause the court can certainly absolve him from such a liability.”
Be it noted, though the said passage was stated in the context of strike by the lawyers, yet it has its accent on nonappearance by a counsel in the court.
18. In this context, we may refer to the pronouncement in Pandurang Dattatraya Khandekar v. Bar Council of Maharashtra [(1984) 2 SCC 556 : 1984 SCC (Cri) 335], wherein the Court observed that : (SCC p. 563, para 9)
“9. … An advocate stands in a loco parentis towards the litigants and it therefore follows that the client is entitled to receive disinterested, sincere and honest treatment especially where the client approaches the advocate for succour in times of need.”
19. In Lt. Col. S.J. Chaudhary v. State (Delhi Admn.) [(1984) 1 SCC 722 : 1984 SCC (Cri) 163 : AIR 1984 SC 618] , a three Judge Bench, while dealing with the role of an advocate in a criminal trial, has observed as follows : (SCC pp. 72324, para 3) “3. We are unable to appreciate the difficulty said to be experienced by the petitioner. It is stated that his advocate is finding it difficult to attend the court from day to day. It is the duty of every advocate, who accepts the brief in a criminal case to attend the trial from day to day. We cannot overstress the duty of the advocate to attend to the trial from day to day. Having accepted the brief, he will be committing a breach of his professional duty, if he so fails to attend.”
20. In Mahabir Prasad Singh [(1999) 1 SCC 37 : AIR 1999 SC 287], the Bench, laying emphasis on the obligation of a lawyer in his duty towards the Court and the duty of the Court to the Bar, as ruled as under: (SCC p. 44, paras 1718)
“17. … ‘A lawyer is under obligation to do nothing that shall detract from the dignity of the court of which he is himself a sworn officer and assistant. He should at all times pay deferential respect to the Judge, and scrupulously observe the decorum of the courtroom.’ [Warevelle’s Legal Ethics, p. 182]
18. Of course, it is not a unilateral affair. There is a reciprocal duty for the court also to be courteous to the members of the Bar and to make every endeavour for maintaining and protecting the respect which members of the Bar are entitled to have from their clients as well as from the litigant public. Both the Bench and the Bar are the two inextricable wings of the judicial forum and therefore the aforesaid mutual respect is sine qua non for the efficient functioning of the solemn work carried on in courts of law. But that does not mean that any advocate or a group of them can boycott the courts or any particular court and ask the court to desist from discharging judicial functions. At any rate, no advocate can ask the court to avoid a case on the ground that he does not want to appear in that court.”
21. While recapitulating the duties of a lawyer towards the court and society, being a member of the legal profession, this Court in O.P. Sharma v. High Court of P&H [(2011) 6 SCC 86 : (2011) 3 SCC (Civ) 218 : (2011) 2 SCC (Cri) 821 : (2011) 2 SCC (L&S) 11] has observed that : (SCC p. 92, para 17)
“17. The role and status of lawyers at the beginning of sovereign and democratic India is accounted as extremely vital in deciding that the nation’s administration was to be governed by the rule of law.”
The Bench emphasised on the role of eminent lawyers in the framing of the Constitution. The emphasis was also laid on the concept that lawyers are the officers of the court in the administration of justice.
22. In R.K. Garg v. State of H.P. [(1981) 3 SCC 166 :1981 SCC (Cri) 663] , Chandrachud, C.J., speaking for the Court pertaining to the relationship between the Bench and the Bar, opined thus : (SCC p. 170, para 9)
“9. … the Bar and the Bench are an integral part of the same mechanism which administers justice to the people. Many members of the Bench are drawn from the Bar and their past association is a source of inspiration and pride to them. It ought to be a matter of equal pride to the Bar. It is unquestionably true that courtesy breeds courtesy and just as charity has to begin at home, courtesy must begin with the Judge. A discourteous Judge is like an ill tuned instrument in the setting of a courtroom. But members of the Bar will do well to remember that such flagrant violations of professional ethics and cultured conduct will only result in the ultimate destruction of a system without which no democracy can survive.”
5.5 Today the judiciary and the justice delivery system is facing acute problem of delay which ultimately affects the right of the litigant to access to justice and the speedy trial. Arrears are mounting because of such delay and dilatory tactics and asking repeated adjournments by the advocates and mechanically and in routine manner granted by the courts. It cannot be disputed that due to delay in access to justice and not getting the timely justice it may shaken the trust and confidence of the litigants in the justice delivery system. Many a times, the task of adjournments is used to kill Justice. Repeated adjournments break the back of the litigants. The courts are enjoying upon to perform their duties with the object of strengthening the confidence of common man in the institution entrusted with the administration of the justice. Any effort which weakens the system and shake the faith of the common man in the justice dispensation has to be discouraged. Therefore the courts shall not grant the adjournments in routine manner and mechanically and shall not be a party to cause for delay in dispensing the justice. The courts have to be diligence and take timely action in order to usher in efficient justice dispensation system and maintain faith in rule of law. We are also aware that whenever the trial courts refused to grant unnecessary adjournments many a times they are accused of being strict and they may face displeasure of the Bar. However, the judicial officers shall not worry about that if his conscience is clear and the judicial officer has to bear in mind his duties to the litigants who are before the courts and who have come for justice and for whom Courts are meant and all efforts shall be made by the courts to provide timely justice to the litigants. Take an example of the present case. Suit was for eviction. Many a times the suits are filed for eviction on the ground of bonafide requirements of the landlord. If plaintiff who seeks eviction decree on the ground of personal bonafide requirement is not getting the timely justice and he ultimately gets the decree after 10 to 15 years, at times cause for getting the eviction decree on the ground of personal bonafide requirement may be defeated. The resultant effect would be that such a litigant would lose confidence in the justice delivery system and instead of filing civil suit and following the law he may adopt the other mode which has no backing of law and ultimately it affects the rule of law. Therefore, the court shall be very slow in granting adjournments and as observed hereinabove they shall not grant repeated adjournments in routine manner. Time has now come to change the work culture and get out of the adjournment culture so that confidence and trust put by the litigants in the Justice delivery system is not shaken and Rule of Law is maintained.”
5. In the present case, I find it has been adjourned a number of times without a party causing the appearance before the Bench. Such mechanical adjournment sought allowed has been adversely commented upon by Hon’ble Supreme Court in the decision referred above.
6. Rule 20 provides for dismissal of appeal for non prosecution. The text of the said rule is reproduced below:-
“RULE 20. Action on appeal for appellant’s default. — Where on the day fixed for the hearing of the appeal or on any other day to which such hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Tribunal may, in its discretion, either dismiss the appeal for default or hear and decide it on merits:”
7. In view of the above discussion appeal needs to be dismissed as per Rule 20 for non prosecution.
8. Appeal is dismissed in terms of Rule 20 of CESTAT Procedure for the non prosecution.
(Dictated and pronounced in open court)
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