2018 (1) TMI 305 - HC - Central Excise

Whether the CESTAT was justified in dismissing the appeal filed by the assessee on default on account of non appearance of the appellant or its counsel? - Held that - Section 35(C) of the Central Excise Act delineates the power of the Appellate Tribunal. Rule 20 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 provides for dismissal of appeal for default and for restoration of those appeals which are dismissed for default - in the case of Balaji Steel Re-Rolling Mills v. Commissioner of Central Excise and Customs 2014 (11) TMI 531 - SUPREME COURT it was held that an appeal to which Section 35-C of the Central Excise Act applies cannot be decided by the CESTAT by dismissing it for default. The appeal which has been dismissed through the impugned order is eligible to be restored by setting aside the order of dismissal of the appeal.

Issues:
1. Justification of CESTAT's dismissal of the appeal due to non-appearance of the appellant or its counsel.
2. Interpretation of Section 35G of the Central Excise Act and Rule 20 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 regarding dismissal of appeals for default.
3. Application of legal precedents in deciding whether an appeal can be dismissed for default under Section 35-C of the Central Excise Act.
4. Decision on setting aside the impugned judgment and remitting the appeal to CESTAT for a decision on merits after hearing the parties.

Analysis:

1. The main issue in this appeal under Section 35G of the Central Excise Act was whether the CESTAT was justified in dismissing the appeal due to the non-appearance of the appellant or its counsel. The Court noted that there were disputes between the department and the appellant regarding interlocutory relief, leading to an order dated 13.09.2012. The condition imposed in that order was reportedly satisfied by remittance. The Court reviewed the materials on record, including the grounds of appeal raised before the CESTAT, and found that the appeal should not have been dismissed solely for default due to the circumstances explained.

2. Section 35(C) of the Central Excise Act and Rule 20 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 were crucial in determining the power of the Appellate Tribunal and the procedure for dismissal of appeals for default. By referring to legal precedents such as Commissioner of Income Tax v. S. Chenniappa Mudaliar and Balaji Steel Re-Rolling Mills v. Commissioner of Central Excise and Customs, the Court established that appeals falling under Section 35-C cannot be decided by dismissing them for default. Therefore, the appeal in question, which was dismissed for default, was deemed eligible for restoration.

3. Following the application of legal precedents and the interpretation of relevant provisions, the Court allowed the appeal, setting aside the impugned judgment. The appeal was remitted to the CESTAT for a decision on merits after hearing the parties. A specific date for appearance before the Tribunal was directed, and no costs were awarded in this matter.

4. In conclusion, the judgment focused on the procedural aspects of dismissing appeals for default under the Central Excise Act, emphasizing the need for a decision on merits after considering the circumstances and legal principles involved. The Court's decision to allow the appeal and remit it for further consideration by the CESTAT underscored the importance of fair and thorough adjudication in such matters.

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