2019 (8) TMI 873 - HC - Central Excise

Restoration of appeal - condonation of delay - section 35(G) of the Excise Act, 1944 - HELD THAT - An appeal under section 35(G) of the Excise Act, 1944 will lie instead of a Writ Petition under Article 226/227 of Constitution which definitely would have, had the application for condonation of delay was dismissed on merit, eventually leading dismissal of appeal being barred by time - The petitioner has the remedy seeking restoration of the appeal and the application for condonation which has been dismissed for want of prosecution. In case of Balaji Steel Re-Rolling Mills Vs. Commissioner of Central Excise and Customs 2014 (11) TMI 531 - SUPREME COURT , wherein it is held that the provisions of the Act enjoins upon the Tribunal to pass order on the appeal confirming, modifying or annulling the decision or order appealed against or may remand the matter. It 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 up for hearing. The matter is relegated to the Tribunal for decision in appeal on merit after affording an opportunity of hearing to the parties - Petition disposed off.

Issues:
1. Dismissal of an appeal under section 85 of the Finance Act, 1994 by the Customs, Excise & Service Tax Appellate Tribunal.
2. Challenge against the order directing the deposit of service tax and penalty under sections 76, 77, and 78.
3. Contention on whether an appeal under section 35(G) of the Excise Act, 1944 or a Writ Petition under Article 226/227 of the Constitution is appropriate.
4. Interpretation of the Tribunal's power to dismiss an appeal for default or want of prosecution.
5. Reference to the decision in Balaji Steel Re-Rolling Mills Vs. Commissioner of Central Excise and Customs [(2014) 16 SCC 360].

Detailed Analysis:
1. The appeal was dismissed by the Customs, Excise & Service Tax Appellate Tribunal due to want of prosecution, leading the assessee to file a petition under Article 226/227 of the Constitution. The Tribunal dismissed the appeal as there was no representation on behalf of the appellant during the hearing of the application for condonation of delay. The appeal was challenging an order directing the deposit of service tax and Education Cess on services provided to a specific entity during a specified period.

2. The appeal was against an order affirming the issuance of a show cause notice and directing the deposit of service tax and penalty under various sections of the Finance Act, 1994. The show cause notice also proposed penalties and interest in case of non-payment, relating to services provided to a particular entity during a specific period.

3. The court deliberated on whether an appeal under section 35(G) of the Excise Act, 1944 or a Writ Petition under Article 226/227 of the Constitution was appropriate. The court opined that the petitioner had the remedy to seek restoration of the appeal and the application for condonation, which were dismissed for want of prosecution.

4. The court referred to a previous decision to interpret the Tribunal's power to dismiss an appeal for default or want of prosecution. The decision highlighted that the Tribunal is mandated to pass orders on the appeal's merits and does not possess the power to dismiss the appeal merely due to the appellant's absence during the hearing.

5. In light of the interpretation of the Tribunal's powers, the impugned order dismissing the appeal for want of prosecution was set aside, and the matter was remanded to the Tribunal for a decision on the appeal's merits after affording an opportunity of hearing to the parties. The petition was disposed of accordingly, concluding the legal proceedings.

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