1. This is an application filed by the Collector of Central Excise, New Delhi for restoration of Appeal which was dismissed for non-prosecution and non-compliance with the directions of the Tribunal, by Order No.C237/84-C passed by this Bench of the Tribunal on 30-4-1984.
2. The facts giving rise to this application are that a Show Cause Notice bearing F. No. 198/8/178/78-CX. V, dated 27-11-1978 was issued under Section 36(2) of the Central Excises and Salt Act, 1944 seeking to review the Order in Appeal No. 2386-CE dated 13-12-1977 passed by the Central Collector of Excise, New Delhi. The review proceedings before the Government of India were transferred to this Tribunal after coming into existence the Tribunal on 11-10-1982 and was treated as an Appeal before the Tribunal.
3. This Bench of the Tribunal before whom the Appeal came up for hearing found that the Appellant, i.e. the Collector of Excise, Chandigarh, did not comply with the directions given to him to furnish 4 sets of relevant papers as per the Procedural rules of the Tribunal despite several opportunities granted and in those circumstances this Bench of the Tribunal was constrained to dismiss the Appeal for non-prosecution and non-compliance of the directions.
4. Aggrieved by the said order of the Tribunal, the Applicant filed this Application for restoration of this Appeal alleging therein that the file containing the papers was ' somehow detached from the case file and it remained untraced in spite of persistent efforts made by the Department. This resulted into non-presentation of the documents before the Hon'ble Tribunal and relevant records have now been traced out and the paper book is being filed. It is alleged that the Tribunal has dismissed the Appeal not on merits but for non-compliance of the directions for riling the paper book which was owing to extenuating circumstances. In the interest of justice, equity and fair play, the Appeal which was dismissed purely on technical grounds be restored to its original number and be heard on merits.
6. We have heard Shri A.S. Sundar Rajan, J.D.R. for the Department and Shri Krishan Kumar for the Respondent and gone through the record.
7. It is an admitted fact that the Appeal was dismissed not on merit but for non-prosecution and non-compliance of the directions, i.e. not filing the 4 sets of relevant papers as required under Rule 16 of the Procedural Rules of this Tribunal.
8. The question arises whether depriving a party of his right of hearing on merit would be justified for non-compliance of the Procedural Rules 9. Hon'ble the Supreme Court has answered this question in a decision given in the case of Kalipada Das and Ors. v. Bimal Krishna Sen Gupta reported in 'All India Reporter 1983 Supreme Court 876' wherein the Lordship of the Supreme Court held-"Supplying paper-books is a procedural requirement devised to facilitate rendering justice. In other words, it is a procedural step in aid of justice and not substantive justice itself. Undoubtedly, Court's orders have to be obeyed. The institution of judiciary may not be able to function if there is no sanction behind the Court's order. But penalty of failure to comply with Court's order providing a procedural stage in aid of justice must be commensurate with the gravity of the lapse. If the penalty imposed is disproportionate to the gravity of the lapse or omission, the procedural stage instead of becoming a step in aid of justice would be a road block to justice." 10. Keeping in view this proposition of law as laid down by Hon'ble Supreme Court, we have to find out whether this lapse on the part of the Department/applicant warrants such a penal action like dismissing its Appeal for non-compliance of the order of the Tribunal in not producing the paper-books in time.
11. A perusal of the record shows that though the Department/applicant is negligent and careless in not obeying the order of the court in as much as the letter written by the Departmental representative to the Collector concerned for compliance of the order of the Tribunal yielded no fruit.
12. The Departmental officials particularly Collectors concerned should be vigilant enough to see that the orders of the Tribunal are complied with immediately in the aid of justice. In this case, the Collector concerned has now complied with the directions of the Tribunal in riling paper-books as far back as on 21-9-1984. Though he has taken a lot of time to comply with the directions but in view of the explanation given by him that the file containing the papers was somehow detached from the case file and it remained untraced in spite of persistent efforts made by the Department is sufficient enough to restore the Appeal to its original number.
13. Under the circumstances, we hereby restore this appeal to its original number. The date of hearing be communicated to the parties as per the availability of the date in the working diary of the Bench keeping in view the fact that this appeal is of the year 1978.