2016 (1) TMI 522 - HC - Central Excise

Restoration of appeal - Tribunal dismissed the appeal for want of prosecution - Held that Central Excise Act, 1944, does not give any power to the Tribunal to dismiss the appeal for default or for want of prosecution in case the appellant is not present when the appeal is taken for hearing. In the light of this clear pronouncement of law we cannot sustain the impugned order. The initial dismissal itself being contrary to law, the refusal to restore the appeal for adjudication on merits cannot be sustained. Once we also find that there was a justification for the petitioner s non-appearance before the Tribunal on the two dates mentioned above viz. in 2008 and 2009 as the company was in winding up, then, in the peculiar facts of this case, we refrain from imposing any further conditions or costs.

Summary

Issues:
1. Restoration of appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT).
2. Dismissal of restoration application by the Tribunal.
3. Legality of dismissing an appeal for want of prosecution.
4. Interpretation of the Central Excise Act, 1944 regarding dismissal of appeals.

Analysis:
1. The petitioner filed a writ petition challenging the order passed by CESTAT dismissing the restoration application for Appeal No. E/2461/1999-DB. The petitioner sought restoration of the appeal due to inability to appear in previous hearings because of a winding-up order. The Court allowed the petitioner to recall the winding-up order, leading to the restoration application before CESTAT.

2. The Tribunal dismissed the restoration application based on a communication from the petitioner requesting adjournment due to ongoing legal proceedings related to winding up. The petitioner's success in setting aside the winding-up order prevented their presence during the restoration application hearing. The petitioner, aggrieved by the dismissal, approached the High Court for relief.

3. The Court noted that the Tribunal erred in dismissing the appeal for want of prosecution, contrary to the legal position clarified by the Supreme Court in a previous case. The Central Excise Act, 1944 does not empower the Tribunal to dismiss appeals for default or lack of prosecution. Therefore, the initial dismissal and refusal to restore the appeal were deemed illegal.

4. Relying on the Supreme Court's interpretation of the law, the High Court set aside the Tribunal's order and restored the appeal for adjudication on merits. The Court refrained from imposing further conditions or costs due to the petitioner's justified non-appearance during the winding-up period. The Tribunal was directed to hear and dispose of the appeal within three months from the first date of hearing, emphasizing cooperation from both parties for early resolution.

In conclusion, the High Court allowed the writ petition, setting aside the Tribunal's order and restoring the appeal for further proceedings in accordance with the law.