ORDER

The appellant had filed a refund claim which was rejected by the Assistant Collector of Central Excise. The appellant filed an appeal before the Collector (Customs) and the appeal was allowed. The respondent, the Collector of Central Excise, filed an appeal there against before the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT). The appeal was on board for hearing on 31st August, 1987. When the appeal reached hearing, the appellant (before us) was not represented. CEGAT heard the departmental representative in support of the appeal and decided it ex-parte against the appellant on merits. At about 11.30 A.M. on the same day CEGAT was told that the counsel for the appellant had been held up and would soon reach CEGAT. The informant was told that the appeal had already been heard and disposed of. The bench having risen, the counsel for the appellant met the Vice President of CEGAT in his chambers and, explaining why he had been held up, requested that the ex-parte order on the appeal be recalled and the appeal be heard on merits. The counsel was told, very rightly, to put his request in writing. An application in this behalf was filed. When the application was heard, learned counsel for the appellant stated what had delayed him, relied upon Rule 41 of the CEGAT (Procedure) Rules, 1982, and prayed for recall of the order dismissing the appeal on merits. The learned departmental representative representing the respondent, "while submitting that he would have no objection to the order being recalled, stated that the Tribunal, in view of Rules 20 and 21 of CEGAT (Procedure) Rules, 1982 had no power to recall or set aside such an order passed on merits in absence of the respondents". CEGAT considered the provisions of Rules 20 and 21 and of Rule 41. It observed that it could be seen from Rules 20 and 21 that whereas the proviso to Rule 20 provided for restoration of an appeal dismissed in default on sufficient cause being shown, there was no such provision with respect to an appeal heard ex-parte in the absence of the respondent to it under Rule 21. CEGAT noted the nature and true character of the order which it passed. It noted the decision of this Court in Commissioner of Incometax, Madras v. S. Chenniappa Mudallar.1 It found that where a respondent had not availed of the opportunity to put forward his case, CEGAT was not absolved of its responsibility to decide. It held :

"Therefore, even if respondent was not present when the appeal was called for hearing, would not absolve the Tribunal from deciding the appeal on merits on the basis of material on record. That in fact the Tribunal did. The decision taken by the Tribunal in the absence of the respondent is not an ex-parte decision or decree as understood under the Code of Civil Procedure or in a Civil Court and if it is a decision on merits. We fail to see how we can review or set aside the same. Recalling the order passed on merits would in fact a mount to setting aside or reviewing an order decided on merits. In doing so, the Tribunal would be exercising a power which is not vested in it by law. We do not think that in such a situation Rule 41 of CEGAT (Procedure) Rules, 1982 could be pressed into aid by the appellants in support of their request for recalling the order."

2. This is the judgment and order of CEGAT under challenge. Learned counsel for the appellant submitted that Rule 41 was

wide enough to take within its sweep the recall of an order passed on the merits of an appeal if such order was necessary to secure the ends of justice. Mr, Joseph Vellappally, learned counsel for the respondent, fairly, did not disagree.

Our attention was invited to the judgment of this Court in Income-Tax. Officer. Cannora y. M.K. Moham med Kunni2, where the question related to the powers of the Income Tax Appellate Tribunal under Section 254 of the Income Tax Act, 1961. Reliance was placed upon Suther land s Statutory Construction, Third Edition, Domat s Civil Law