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TMI Blog2014 (11) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present appeal is as to whether the Customs, Excise and Service Tax Appellate Tribunal (in short `the Tribunal') has the power to dismiss the appeal for want of prosecution or not. 3) The appellant is a partnership firm engaged in the manufacture and sale of Hot Re-rolled products. The Commissioner of Central Excise and Customs, Aurangabad, vide order dated 20.07.1999, re-fixed the annual capacity of production and duty liability of the appellant. Being aggrieved, the appellant moved the Tribunal. The Tribunal, vide order dated 18.01.2002, remanded the matter Signature Not Verified back to the Commissioner of Central Excise and Customs with a direction to determine the capacity of production in accordance with law after hearing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y which passed such decision or order with such directions as it may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. Thus, there is no power vested in the Tribunal to dismiss the appeal for want of prosecution even if the appellant therein has not appeared when the appeal was taken up for hearing. 7) He further submitted that Rule 20 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 (in short `the Rules') cannot be resorted to as the Section itself does not give power to the Tribunal to dismiss the appeal for want of prosecution. 8) Learned senior counsel for the respondent, however, submitted that under Rule 20 of the Rules, the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sufficient cause for his non-appearance when the appeal was called on for hearing, the Tribunal shall make an order setting aside the dismissal and restore the appeal." 11) From a perusal of the aforesaid provisions, we find that 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. 12) A similar question came up for consideration before this Court in The Commissioner of Income-Tax, Madras vs. S. Chenniappa Mudaliar, Madurai 1969 (1) SCC 591 where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of fact and law and not by merely disposing of the appeal on the ground that the party concerned has failed to appear. As observed in Hukumchand Mills Ltd. v. CIT, the word "thereon" in Section 33(4) restricts the jurisdiction of the Tribunal to the subject-matter of the appeal and the words "pass such orders as the Tribunal thinks fit" include all the powers (except possibly the power of enhancement) which are conferred upon the Appellate Assistant Commissioner by Section 31 of the Act. The provisions contained in Section 66 about making a reference on questions of law to the High Court will be rendered nugatory if any such power is attributed to the Appellate Tribunal by which it can dismiss an appeal, which has otherwise been properly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he necessity of the disposal of the appeal on the merits by the Appellate Tribunal. This is how the learned judge had put the matter in the form of interrogation: "How can it be said that the Tribunal should seek for advice on a question which it was not called upon to consider and in respect of which it had no opportunity of deciding whether the decision of the Court should be sought." Thus looking at the substantive provisions of the Act there is no escape from the conclusion that under Section 33(4) the Appellate Tribunal has to dispose of the appeal on the merits and cannot short-circuit the same by dismissing it for default of appearance." 13) Applying the principles laid down in the aforesaid case to the facts of the present ..... X X X X Extracts X X X X X X X X Extracts X X X X
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