2015 (7) TMI 341 - HC - Central Excise

Restoration of appeal - Appeal dismissed for non prosecution - Held that - section 35C deals with the orders of the Appellate Tribunal. In that section, there is no power conferred upon the Tribunal, according to the Hon ble Supreme court, of dismissing the appeal for want of prosecution. The judgment of the Hon ble Supreme Court 2014 (11) TMI 531 - SUPREME COURT construed subsection (1) of Section 35C of the Act and holds that the larger or wider power will not include the situation where an appeal can be dismissed without adjudication on merits or for want of prosecution. A reference is also made to Rule 24 of the Appellate Tribunal Rules,1946 under the Income Tax Act,1922 and equally Rule 20 of the subject Rules. Though the rule may be giving power to the Tribunal to dismiss in its discretion an appeal for default yet, construing its wording the Hon ble Supreme Court holds that when the Act enjoins upon the Tribunal to pass order on the appeal confirming, modifying or annulling the decision or order appealed against or it may remand the matter, then, that power under the Section does not include dismissal of appeal for default or for want of prosecution. - Opportunity should have been granted to assessee - Impugned order is set aside - Decided in favour of assessee.

Summary

Issues:
Challenge to order of Customs, Excise & Service Tax Appellate Tribunal for dismissal of appeal due to want of prosecution.

Analysis:
The Writ Petition was filed to challenge the Customs, Excise & Service Tax Appellate Tribunal's order dated 29.11.2013, which dismissed the application for restoration of Appeal No.E/399/10 - Mumbai due to want of prosecution. The Tribunal's order highlighted that the applicant failed to appear for hearings despite adjournments, leading to the dismissal of the appeal. The petitioner argued that the Tribunal lacked the power to dismiss the appeal for want of prosecution and cited a Supreme Court judgment in support. On the contrary, the respondents contended that the petitioner's conduct reflected neglect and non-compliance with orders, justifying the dismissal. The Court examined the powers of the Tribunal under Section 35C of the Central Excise Act, 1944, and emphasized that the Tribunal cannot dismiss an appeal for want of prosecution without adjudication on merits. Referring to relevant rules, the Court clarified that the Tribunal's power does not include dismissing appeals for default or lack of prosecution.

The Court held that since the Tribunal had no authority to dismiss the appeal without adjudication on merits, it should have granted the petitioner an opportunity to argue the case and satisfy the Tribunal regarding the Commissioner's order. Consequently, the Court allowed the Writ Petition, setting aside the Tribunal's order and restoring the petitioner's appeal for decision on merits, subject to the condition of paying costs. The Court emphasized that while the Tribunal must hear all appeals on merits, revival of dismissed appeals or restoration applications should be decided case by case. In this instance, the Court imposed the condition of costs due to the petitioner's and their advocate's failure to appear before the Tribunal on multiple occasions, coupled with the delayed filing of the restoration application. Non-compliance with the cost condition would lead to the dismissal of the Writ Petition and confirmation of the Tribunal's order, without any extension of time granted.