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TMI Blog2015 (7) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... wriggle out of the same and by relying on the present state of law as emerging from the judgment of the Hon'ble Supreme Court of India. The consequences of a breach of such a conditional order was also not an issue before the Hon'ble Supreme Court in the above judgment. The law laid down in the above decision cannot be stretched and applied to a situation where the conditional order is not complied with and still the appeal must be decided on merits. That was a case where the appellant and for no fault of his, was visited with a dismissal of his appeal for want of prosecution. He lost a valuable right of appeal and adjudication of the same on merits. Such is not the case before us. The appellant approached the tribunal on two occasions. Prior thereto, he approached the Commissioner (Appeals) and applied for discretionary and equitable reliefs. There was a conditional stay. He did not comply with that condition as well. Rather he did not comply with the conditions imposed by the tribunal as well. - Decided against assessee. - Central Excise Appeal No. 57 of 2014, Central Excise Appeal No. 58 of 2014 - - - Dated:- 9-6-2015 - S. C. Dharmadhikari And G S Kulkarni,JJ. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal that the appeal cannot be dismissed for nonprosecution. The appeal was dismissed for non-compliance with the conditions imposed while granting stay as well as non-prosecution. In these circumstances, the judgment of the Hon'ble Supreme Court of India cited supra cannot be of any assistance. 4. After having perused the paper book, we are of the view that the appeal deserves to be admitted on the following substantial question of law:- 1. Whether the Tribunal was justified in law in passing its order dated 14.10.2013 decline the appeals on merits for the reason the action stated in para 3 of its's order? 5. By consent this Appeal is disposed off finally by this order. The basic facts and which are undisputed are that the appellant before us is a Director of a company registered under the Indian Companies Act, 1956. The company was engaged in the manufacture of processed manmade fabrics and which was subjected to a excise duty under the Central Excise Act, 1944 and Central Excise Tariff Act, 1985. The assessee's product was thus made liable to payment of duty under these Acts. The appellants had cleared the goods without payment of excise duty. There was a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PPLICATION NO. OF 2013 MISCELLANEOUS APPLICATION FOR RESTORATION OF APPEAL ARISING OUT OF CESTAT ORDER NOS/1120.1121/12/FB/C11// 504/12/FB/C11 DATED 16.5.2012. Rajesh Arora Director M/s Raviraj Processors Pvt.Ltd Badlapur District Thane .. Applicant vs Commissioner of Central Excise Thane1 .. Respondent MAY IT PLEASE YOUR HONOURS: 1. The applicant respectfully draws the Hon'ble Members' kind attention that the above appeal listed on 16.5.2012 wherein stay Petition and Appeals are dismissed for nonprosecution. 2. The Applicant submits that their manufacturing unit is closed and they are facing in severe financial hardship. The impugned order was supplied by jurisdictional Supt.of Central Excise to the Applicant. It is to be noted that in earlier proceedings, the Hon'ble Tribunal after seeing their law abiding attitude permitted them to rent out their property and deposit entire rent with Department till ₹ 15,00,000/- is paid. The Applicant submits that they are in a position to engage an Advocate or legal Consultant. The order of Hon'ble Tribunal is attached herewith. 3. The Applicant respectfully submits that the dismissal order has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t such an order of the tribunal the appellant before the Hon'ble Supreme Court of India approached the Aurangabad Bench of this Court by filing Central Excise Appeal No.14 of 2013. That came to be dismissed by holding that there is no substantial question of law raised therein. It is in these circumstances that the Hon'ble Supreme Court analysed the tribunal's powers conferred by section 35C of the Central Excise Act, 1944. Section 35C of the Central Excise Act, 1944 reads as under: The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. The Appellate Tribunal may, if sufficient cause is shown, (1A) at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fault 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 wherein this Court considered the provisions of Section 33 of the Incometax Act, 1922 and Rule 24 of the Appellate Tribunal Rules, 1946 which gave power to the Tribunal to dismiss the appeal for want of prosecution. For ready reference, Section 33(4) of the Income Tax Act, 1922 and Rule 24 of the Appellate Tribunal Rules, 1946 are reproduced below: Section 33(4) of the Income Tax Act, 1922 33(4). The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate any such orders to the assessee and to the Commissioner. Rule 24 of the Appellate Tribunal Rules, 1946 24. 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 appeal is called on for hearing, the Tribunal may dismiss the appeal for default or may hear it ex parte. Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hettiar that the jurisdiction of the Tribunal and of the High Court is conditional on there being an order by the Appellate Tribunal which may be said to be one under Section 33(4) and a question of law arising out of such an order. The Special Bench, in the present case, while examining this aspect quite appositely referred to the observations of Venkatarama Aiyar, J. in CIT v. Scindia Steam Navigation Co. Ltd. indicating the 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 shortcircuit 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 case, as the two provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the tribunal on the appellant before it while entertaining a appeal and granting interim relief. The Hon'ble Supreme Court nowhere holds that the higher Court or Tribunal cannot pass a conditional order of restoration of a appeal dismissed for want of prosecution. The consequences of a breach of such a conditional order was also not an issue before the Hon'ble Supreme Court in the above judgment. The law laid down in the above decision cannot be stretched and applied to a situation where the conditional order is not complied with and still the appeal must be decided on merits. That was a case where the appellant and for no fault of his, was visited with a dismissal of his appeal for want of prosecution. He lost a valuable right of appeal and adjudication of the same on merits. Such is not the case before us. The appellant approached the tribunal on two occasions. Prior thereto, he approached the Commissioner (Appeals) and applied for discretionary and equitable reliefs. There was a conditional stay. He did not comply with that condition as well. Rather he did not comply with the conditions imposed by the tribunal as well. In such circumstances, we pass the following ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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