2006 (10) TMI 340 - AT - Central Excise

Summary

Issues:
1. Restoration of appeal against ex parte dismissal by Tribunal.
2. Applicability of second proviso to Section 35B regarding admission of appeal based on amount involved.
3. Discrimination in admission of appeals based on amount of duty and penalty.

Issue 1: Restoration of appeal against ex parte dismissal by Tribunal
The appellant filed an application for the restoration of their appeal, which was dismissed ex parte by the Tribunal due to the duty amount of Rs. 29,331 and penalty of Rs. 2,000 involved. The appellant argued that the ex parte order could be recalled by the Tribunal even if passed on merits, citing a decision of the Hon'ble Apex Court. The appellant highlighted that other appellants with lesser duty and penalty amounts were directed to pay 50% of the duty amount and their appeals were admitted. The Tribunal, however, exercised its discretion and refused to admit the appeal, leading to the dismissal of the restoration application.

Issue 2: Applicability of second proviso to Section 35B regarding admission of appeal based on amount involved
The Departmental Representative (DR) contended that the second proviso to Section 35B grants unfettered discretion to the Tribunal not to admit appeals where the duty or penalty amount does not exceed Rs. 50,000. The DR emphasized that these provisions do not mandate consideration of points of law or facts. Therefore, the DR supported the Tribunal's decision to reject the appeal at the admission stage, asserting that there was no requirement to restore the same.

Issue 3: Discrimination in admission of appeals based on amount of duty and penalty
The appellant raised concerns regarding potential discrimination, arguing that if their appeal was not admitted while others with lower duty and penalty amounts were granted admission, it would result in discrimination. However, the Tribunal, after considering the provisions of the second proviso to Section 35B, concluded that its discretion was unfettered and did not necessitate the consideration of points of law or facts in refusing to admit the appeal. Consequently, the Tribunal upheld its decision to reject the restoration of the appeal application, maintaining consistency with its initial dismissal.

This detailed analysis of the judgment from the Appellate Tribunal CESTAT, Ahmedabad, provides insights into the restoration of appeal, the application of legal provisions, and the issue of potential discrimination in admission of appeals based on the amount involved.