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2019 (1) TMI 372 - HC - Central ExciseRestoration of appeal - appeal was dismissed for non-prosecution - Section 35G of the Central Excise Act, 1944 - substantial question of law - Held that - Identical issue was considered by the Hon'ble Division Bench of this Court in the case of P.Ganesh, Commercial Director Vs. The Commissioner of Central Excise in CMA No.2055 of 2018 dated 19.09.2018. In the said case also the Tribunal dismissed the appeal for non-prosecution - this appeal is allowed and Substantial Questions of Law framed for consideration are answered in favour of the assessee - the matter is restored to the Tribunal for consideration of the appeal on merits.
Issues:
1. Maintainability of appeal under Section 35G of the Central Excise Act arising from a Miscellaneous Order. 2. Dismissal of appeal for non-prosecution without deciding on merits. 3. Dismissal of restoration application by the Tribunal. 4. Consideration of provisions of Section 35C of the Central Excise Act regarding dismissal for non-prosecution. Analysis: 1. The appeal was filed under Section 35G of the Central Excise Act against the order of the Central Excise and Service Tax Appellate Tribunal, which dismissed the appeal for non-prosecution. The respondent argued that such an appeal would not be maintainable as it arose from a Miscellaneous Order. However, the Court disagreed, stating that even in cases of delay or dismissal for non-prosecution, a Substantial Question of Law arises, justifying the examination of the correctness of the Tribunal's orders (para 3). 2. The appeal was entertained based on Substantial Questions of Law, questioning the Tribunal's dismissal of the appeal for non-prosecution without deciding on merits. Citing relevant judgments, including Balaji Steel Re-rolling Mills case, the Court highlighted that the Tribunal must decide appeals on merits and not dismiss them for default of appearance. The Tribunal's failure to consider the grounds raised by the appellant and the absence of the appellant's counsel on one hearing were crucial factors in setting aside the impugned order (paras 4, 13, 14). 3. The Court referenced a similar case where the Tribunal dismissed an appeal for non-prosecution, emphasizing that the Tribunal's power to dismiss appeals for non-appearance conflicts with statutory provisions. The Court held that dismissing appeals for non-appearance is contrary to law and ordered the restoration of the appeal for adjudication on merits (para 6). 4. Considering the provisions of Section 35C of the Central Excise Act, the Court reiterated that the Tribunal lacks the power to dismiss appeals for default or non-prosecution. Citing the Balaji Steel Re-rolling Mills case, the Court emphasized that appeals must be decided on merits, not dismissed for want of prosecution. The judgment highlighted the necessity of restoring the appeal for proper consideration and directed the appellant to appear before the Tribunal without seeking adjournments (para 7). In conclusion, the Court allowed the appeal, answered the Substantial Questions of Law in favor of the appellant, and remanded the matter to the Tribunal for a fresh consideration, emphasizing the importance of deciding appeals on merits and following due process in adjudication.
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