JUDGMENT - KOCHAR R.J., J.:—This matter can be disposed of at this stage itself. We, therefore, grant rule and make the rule returnable forthwith by consent. Heard finally.

2.The petitioners are aggrieved by the order dated 6-9-2001 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, West Regional Bench at Mumbai (for short, the Tribunal) in Appeal No. E/1045/96-Bombay arising out of an Order-in-Original No. 1/96 dated 4-12-1995 passed by the Commissioner of Central Excise and Customs, Nagpur. By the impugned order, the learned Tribunal was pleased to dismiss the appeal for the reasons recorded in the order. We are not dealing with the merits of the order passed by the Tribunal.

3.The petitioners have approached this Court to pray for setting aside of the impugned ex parte order passed by the Tribunal against the petitioners. It is the case of the petitioners that on 20-3-2001 at the time of hearing of the appeal, no one had attended the hearing of the appeal and an application for adjournment was posted giving the ground for adjournment that the Officer, who was attending, had fallen ill. It appears from the order that the said adjournment application was not granted and the Tribunal proceeded to decide the appeal on merits. It appears that the Tribunal also did not send any notice to the petitioners that the adjournment application was rejected and that the matter would be heard on a particular date.

4.We are of the opinion that it would have been proper for the Tribunal to have communicated the rejection of the adjournment application to the petitioners and to have placed the matter for hearing on a particular date with a warning that on that day the Tribunal would decide the appeal ex parte. Before actual ex parte order is passed, it is always better and proper to pass an order to place the matter for ex parte order on the next date.

5.The learned Counsel appearing for the petitioners submits that the practice followed by the Tribunal is that every time a communication or a notice is sent to the parties intimating the next date of hearing of the appeal. He further submits that the petitioners were waiting for such a notice from the Tribunal. He further points out that finally on 15-11-2001 what his client received was the final order passed by the Tribunal on 6-9-2001, whereby the appeal was dismissed. The learned Counsel for the petitioners has submitted that the ex parte order should be set aside as it was without hearing the petitioners. He has also submitted that as per the practice, the petitioner was waiting for an intimation of the date from the Tribunal and as his client did not get such intimation, they did not attend the Tribunal and did not enquire from the office of the Tribunal about the hearing of the appeal. The learned Counsel further submitted that the petitioners have a good case on merits and his client would be seriously prejudiced by requiring to make payment of Rs. 25 lacs approximately towards the denial of MODVAT Credit as originally prayed for by the petitioners and the penalty of Rs. 50,000/- imposed on them.

6.Shri Mishra, the learned Counsel for the respondents, has very seriously and vehemently opposed the grant of the relief prayed for by the petitioners on the ground that the petitioners have been negligent in the matter. The learned Counsel further pointed out from the body of the order that the officers of the petitioners on a number of occasions in the past were seeking adjournment only on the ground that the officers attending the Tribunal were falling ill every time. This  curious illness of the officers attending the Tribunal was not bona fide and genuine, says the learned Counsel.

7.We generally agree with the submissions made on behalf of the respondents. Nonetheless, fact remains that the petitioners were not heard in the matter and they are required to shell out a large amount of Rs. 25 lacs approximately. It appears that on 20-3-2001 the petitioners did take care of sen

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