2018 (6) TMI 573 - AT - Central Excise

Restoration of appeal - appeal was rejected relying on the proviso to Section 35B which permits Tribunal to exercise its discretion in refusing to admit the appeals to dispute involving duty less than ₹ 2 lakhs - Held that - Reliance placed in the case of M K Trading Co. 2018 (1) TMI 1268 - BOMBAY HIGH COURT , where it was held that Once the appeal was admitted in this case and kept pending, then, no useful purpose is served by dismissing it at the final hearing on the ground of maintainability - the order is recalled and the appeal is restored to its original number - application for restoration of appeal allowed.

Summary

Issues: Restoration of Appeal application based on Section 35B proviso

Analysis:
The appeal by M/s. Deepak Nitrite Ltd. was rejected under Section 35B proviso allowing the Tribunal to refuse appeals involving duty less than ?2 lakhs. The counsel for the applicant cited a Bombay High Court decision in M K Trading Co. where it was held that once an appeal is admitted and kept pending, dismissing it on technical grounds without adjudication on merits is improper. The High Court emphasized that the Tribunal's discretion must be exercised judiciously and not capriciously. The Tribunal's failure to decide the appeal on merits was deemed a legal error, leading to the setting aside of the previous order and restoration of the appeal for adjudication on merits.

The Tribunal, following the High Court's decision in M K Trading Co., recalled the order rejecting the appeal by M/s. Deepak Nitrite Ltd. and restored it to its original number for further adjudication. The decision was based on the principle that once an appeal is admitted and pending, dismissing it without considering the merits is against the law. The Tribunal was directed not to dismiss the appeal based solely on the amount involved, emphasizing the need for a thorough examination of the case on its merits in accordance with the law.