9911796707
TMI Blog1988 (4) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication appears necessary. Revenue s Appeal No. 590/84-C, parties Collector of Central Excise, Jaipur v. M/s. J.K. Synthetics Ltd. was on respondent s request, adjourned from 24-8-1987 to 31-8-1987. On 31-8-1987 when the appeal was called for hearing, none was present for the respondents. The Tribunal proceeded ex-parte against the respondent and heard Smt. J.K. Chander, Departmental Representative for the appellant-Collector of Central Excise, Jaipur. 3. Relying on a Five Member Bench decision of the Tribunal, the order of the Collector (Appeals) challenged before the Tribunal, was set aside in so far as it related to refund in respect of cartons. In respect of cones, it was confirmed. As respect other packing materials, the claim for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e just and necessary. The application also in substance recites the history as already set out above by us. 5. At the hearing of the application, Shri Ravinder Narain, Advocate for the applicants, explained as to how he was held up in High Court. He could not have foreseen that the appeal would be called for hearing at an early hour of the day because two stay matters were also fixed for hearing on the same day. He also submitted that in High courts whenever such a contingency arises, the order is recalled. According to him, Rule 41 of CEGAT (Procedure) Rules, 1982 confers wide power on the Tribunal and on the facts and history set out above, in exercise of the powers vested by the Rule, the Tribunal should recall the order to secure the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Tribunal may, in its discretion, either dismiss the appeal for default or hear and decide it on merits : Provided that where an appeal has been dismissed for default and the appellant appears after-wards and satisfies the Tribunal that there was sufficient cause for his non-appearance when the appeal was called on or hearing, the Tribunal shall made an order setting aside the dismissal and restore the appeal." 21. Hearing of appeals ex-parte - Where on the day fixed for hearing of the appeal or on any other day to which the hearing is adjourned the appellant appears and the respondent does not appear when the appeal is called on for hearing, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n an appeal presented to it. The Supreme Court was concerned with Rule 24 of the Appellate Tribunal Rules, 1946 when the provision for restoring an appeal dismissed for default was not there. As is the situation with respect to Rule 21 of CEGAT (Procedure) Rules, 1982 or Rule 25 of the Income-tax (Appellate Tribunal) Rules, 1963. The Hon ble Supreme Court affirmed the decision of the Hon ble Madras High Court. The Supreme Court decision extracts the material portion of the Madras High Court, Special Bench decision, which is in the following words - To sum up the position, the Appellate Tribunal is the appointed machinery under the Act for finally deciding questions of fact in relation to assessment of Income-tax. Its composition, consist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s being conflict with the provision of Section 33(4) of the Act. Section 35C(1) of Central Excises and Salt Act, 1944 and Section 35D ibid read with Section 129C of Customs Act, 1962 show that the statutory position dealt with by Madras High Court was substantially the same as now obtaining in this Tribunal. Therefore, even if respondent was not present when the appeal was called for hearing, would not absolve the Tribunal from deciding the appeal on merits on the basis of material on record. That in fact the Tribunal did. The decision taken by the Tribunal in the absence of the respondent is not an ex-parte decision or decree as understood under the Code of ,Civil Procedure or in a Civil Court, and if it is a decision on merits, we fail ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
