1. The Minerals & Metals Trading Corporation of India Ltd., 8 India Exchange Place, Calcutta-I have filed a miscellaneous Petition with the Registry for the setting aside of Order No. 427/Cal/83-2686 dated 18th November, 1983 dismissing the appellant's appeal for default under Rule 20 of the Customs, Excise & Gold (Control) Appellate Tribunal Procedure Rules, 1982. Shri T.K. Kar, Advocate has appeared on behalf of the appellant and has reiterated the facts stated in the Miscellaneous Petition dated 10th January, 1984 which is duly supported with an affidavit. Shri Kar, the learned Advocate has pleaded that the notice for hearing dated 11th Nov. 1983 was received by the receipt clerk of the appellant in the afternoon of 11th November '83 and the same was Friday. The 12th Nov. '83 happened to be a Saturday and 13th November '83 was a Sunday. He has pleaded that 15th November '83 was a holiday and the date of hearing was 18th November '83. He has pleaded that there is no wilfull neglect and omission on the part of the appellant and he has pleaded that the appellant's Corporation is a Government of India undertaking and the papers have to pass through various stages before it can reach the right corner and as such- the appellant was prevented by sufficient cause for non-compliance of notice dated 11th November 1983. In the alternative, he has pleaded that it was a short notice of hearing, the appellant just gets one and half day's time taking into consideration the holidays and as such, this short notice had prevented the appellant from appearance in this court. He has also referred to Order No. IX) Rule 9 of the Code of Civil Procedure (Act No. V of 1908). He has pleaded that the procedure as provided in the Code of Civil Procedure 1908, is applicable in this court and has submitted that in case, the appellant's arguments for short notice are not accepted, this court should exercise its inherent power to meet the ends of justice, otherwise, the appellant will suffer an irreparable loss. He has further pleaded that even if there is no sufficient cause but there is just and reasonable cause, this Court should exercise its discretion in favour of the appellant and should set aside the ex-parte order passed by this court dismissing the appellant's appeal for default under Rule 20 of the Customs, Excise & Gold Control Appellate Tribunal Procedure Rules, 1982. He has referred to entry No. 30 from the Commentry on the Code of Civil Procedure by D.F. Mulla page 790 of the 14th Edition where it was held that a suit has been dismissed for default, the same should be restored in cases not provided for by Order No. IX, Rule 9 as per findings in the cases of M.C. Khatizabai v. Mst.
Aktara Begum 50 AN 194; Subhash Chand v. Sarju Devi (1960 AA569). He has also referred to the Bombay High Court judgment in the case of Billasirai v. Cursondas 21 Bombay Law Report 952. 53 1C 552; ILR 44 Bombay 82 wherein it was held that the merit of the appellant's case will form an important element for consideration when the court is asked to exercise its discretion for setting aside the ex-parte order.
He has pleaded that his default is due to element of human error and default is not due to a technical error. He has pleaded that this court should exercise its discretion in setting aside the ex-parte order passed by this court. Otherwise the appellant has to suffer an acute and irreparable loss.
2. In reply, Shri A.K. Deb Roy, the learned S.D.R. has submitted that the arguments advanced by the learned advocate do not prove that the appellant was prevented by sufficient cause. However, he has conceded that the notice of hearing was very short. He has pleaded that the appellant's Miscellaneous Petition should be dismissed.
3. After hearing both the sides and going through the facts and circumstances of the case, I hold that there was short time for notice of hearing and as such, the appellant was prevented by sufficient cause for non-attenance on the 18th day of November, 1983. Here I am referring to two judgments in the cases of R.E. Govindram Sekhsaria 11 ITR 104, 123; Sadaram Puranchand v. CIT 5 ITC 459 wherein it was held that 'if the notice does not give the assessee a reasonable time within which to comply its terms, it would be a sufficient cause for non-compliance or would amount to lack of a reasonable opportunity for compliance within the meaning of this section'. Extracts taken from the Law and Practice Income Tax by Kanga & Palkhivala, 7th Edition page 889 (Not cited by parties). Since I am holding that the appellant was prevented by sufficient cause for non-attendance I hereby set aside the order under proviso to Rule 20 of the Customs, Excise & Gold Control Appellate Tribunal Procedure Rules, 1982. Both the parties are hereby directed to appear in this court on the 8th day of March 1984. In the result the appellant's misc. application is accepted.