9911796707
TMI Blog1984 (10) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and Advocates of 5, Netaji Subhas Road, Calcutta. 2. That the above appeal was filed with the Learned Appellate Tribunal on behalf of the Appellant on the 31st January, 1983 against the Order No. Cal.-Cus.-1222 to 1227/82, dated 21st May, 1982 of the Appellate Collector of Customs, Calcutta. 3. That the notice dated 19th April, 1983 from the Assistant Registrar of the Appellate Tribunal was served upon the Appellant on the 20th April, 1983 fixing the date of hearing of the said appeal before the learned Appellate Tribunal on the 20th May, 1983 at 11 a.m. 4. That the Appellant forwarded the said notice to its Solicitors and Advocates Messrs. Sandersons Morgans and duly empowered them for making appearance on behalf of the appellant on the date fixed for hearing through their Advocates. 5. That I was dealing with the said appeal and the said notice was delivered to me for making appearance at the hearing in the above appeal on the dale fixed. 6. That the said notice was mislaid in my office file of papers and that through inadvertence I omitted to make a note in my diary about the date fixed for hearing and as such I could not appear before the Ld. Appellate Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our of his counsel. He has pleaded that in the instant case the appellant had duly engaged his counsel and there is no lapse on the part of the appellants and the appellant s case is fully covered by the Supreme Court judgment. He has further pleaded that the ex parte judgment in the case of the appellant is dated 23rd May, 1983 whereas on a similar issue the Hon ble Calcutta High Court had passed a judgment in the case Everett (I) Pvt. Ltd. v. Asstt. Collector of Customs and another in Matter No. 1561 of 1981 Order dated 23rd April, 1983 passed by the Hon ble Justice Shri P.C. Barooah. He has pleaded that this judgment was not brought to the notice of this court. Had there been a hearing the appellant could have brought this judgment to the notice of this court. He has pleaded that the appellant s appeal should be restored. 3. In reply, Shri A.K. Chatterjee, the Ld. Jr. D.R. has pleaded that the only point in issue is whether the appellant s restoration application should survive or not/maintainable or not. He has referred to Rule 20 of the Customs Excise Gold Control Appellate Tribunal (Procedure) Rules, 1982 and has laid special emphasis on the words The Tribunal may, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passing such orders thereon as it thinks fit . Rule 20 of the Customs Excise Gold Control Appellate Tribunal (Procedure) Rules, 1982 deals with dismissal of appeal for appellant s default. The same is re-produced as under : (20). Action of appeal for appellant s default.-Where on the day fixed for the hearing of the appeal or on any other day to which such hearing 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 afterwards and satisfies the Tribunal that there was 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. There is a similar rule under the Income-tax Appellate Tribunal (Procedure) Rules, 1963. Rule 24 ibid reproduced below : 24. Dismissal of appeal for appellant s default, etc. - Where on the day fixed for hearing or any other day to which the hearing may be adjourned, the appellant does not appear when the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 66; so far as the questions of fact are concerned the decision of the Tribunal is final and reference can be sought to the High Court only on questions of law. The High Court exercises purely advisory jurisdiction and has no appellate or revisional powers. The advisory jurisdiction can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself has passed proper order under Section 33(4). It follows from all this that the Appellate Tribunal is bound to give a proper decision on questions of fact as well as law which can only be done if the appeal is disposed of on the merits and not dismissed owing to the absence of the appellant. AIR 1965 Mad 62 (S.B.) Affirmed; AIR 1952 All. 857 AIR 1955 Mad. 39 overruled; AIR 1967 S.C. 455 AIR 1953 S.C. 118 AIR 1961 S.C. 1633, Foil.; (1960) 38 I.T.R. 1 (Punjab) Disting. Even assuming (but not deciding) that the Appellate Tribunal has inherent power to restore an appeal dismissed for default under the Civil P.C.R. 24 cannot be deemed valid as it comes into conflict with sub-section (4) of Section 33. AIR 1967 S.C. 455 AIR 1953 S.C. 118, Ref. The said judgment of the Hon ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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