Order Date: 29 August 2022

Facts-

• The Petitioner, Delhi International Airport Limited, has filed a Petition for refund of Service tax amounting to Rs.39,09,130/-. It is averred in the Petition that Service tax was paid twice, i.e., first by the Petitioner through challan and thereafter by utilization of Cenvat Credit, the Petitioner applied for a refund of Service tax which was deposited via challan under Section 11B of the Central Excise Act.
• After filing the application for refund, the Petitioner explained the circumstances in which its Service tax liability was defrayed twice over through personal appearance of its authorized representative as well as via letters.
• Revenue rejected the application on the ground that the Petitioner, having opted to discharge Service tax liability through a challan, should not have debited the same amount from its Cenvat Credit Account. 
• Later in Appeal filed before the CESTAT, it is averred by the Petitioner that after registration of the Appeal, the Petitioner did not receive any notice for hearing for a long period of time and hence decided to apply for an early hearing of the Appeal. It is further averred that it was at that time, upon enquiry made by the Petitioner, it was informed that an Order had already been passed by the CESTAT.
• By an application dated 27.09.2019, the Petitioner applied for Restoration of its Appeal.The Restoration Application was taken up for hearing by the CESTAT on 13.11.2019 in the absence of the Petitioner and was dismissed for non-prosecution as well as failure to show sufficient cause for Restoration of the Appeal.
• Aggrieved, this present appeal is filed contending that Final Order and Restoration-Dismissal Order have been passed without affording the Petitioner an opportunity of being heard and are in violation of the principles of natural justice, and hence are liable to be set aside.

Issue-

• Whether the petition filed by the petitioner is sustainable?

Order –

• The Division Bench of Hon’ble High Court observed that in the Balaji Steel Case it has been held that Section 35 C (1) of the CE Act, does not give any power to the Tribunal to dismiss the Appeal in default or for want of prosecution if the appellant is not present when the Appeal is taken up for hearing.
• Admittedly the CESTAT while passing the Final Order and even the Restoration-Dismissal Order erred in law in not hearing the matter on merits. In the Final Order, the CESTAT dismissed the Appeal for non-prosecution. When the Restoration Application was filed by the Petitioner, it was incumbent on the CESTAT to at least ensure that the Petitioner is served the notice to appear, at the correct address especially in view of the fact that the Petitioner’s Appeal has been dismissed for non-prosecution. However, it is apparent that there was once again non-application of mind by the learned CESTAT.
• The Petitioner is not a small individual trader who is operating out of a premises that is not locatable. The Petitioner is the “Delhi International Airport Limited” whose addresses and contact details in addition to being available online, could have easily been ascertained by the CESTAT.
• The Petition is allowed.