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TMI Blog2016 (7) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... l question of law: "Whether the Tribunal was right in dismissing the appeal filed by the appellant for want of prosecution only on account of the non-compliance with the requirement of pre-deposit as contained in Section 35(c) of the Central Excise Act and the rules of procedure framed therein ?" 2. The facts of the case, in brief, are that on 16-9-2008 a show cause notice was issued to the appellant-assessee alleging that it is liable to pay duty on the services rendered for loading and unloading of wagons which fall under the taxable category - "Cargo Handling Services" and not in the category - "Goods Transport Services". Accordingly, in the notice to show cause, it was the case of the respondent/Revenue that the services rendered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... none appeared on behalf of the appellant, when the matter was taken up on 6-5-2014. The application, dated 13-6-2014 filed by the appellant for restoration, also faced dismissal by the learned Appellate Tribunal on 20-01-2015. Hence, this appeal before us on the substantial question of law indicated hereinabove. 7. Shri Kapil Jain, learned counsel for the appellant has invited our attention to the principle of law laid down by the Supreme Court in the case of Balaji Steel Re-Rolling Mills vs. Commissioner of C. Ex. & Customs, 2014 (310) ELT 209 (SC) and tried to argue that the Supreme Court in the aforesaid case has laid down the principle to hold that when an appeal is filed, the Appellate Tribunal is duty-bound to decide the appeal on m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers vs. Commissioner of Central Excise, Kanpur, 2015- TIOL- 90- SC- CX- LB, to say that the Supreme Court also restored the appeal for hearing after accepting the pre-deposit amount, on account of the fact that no prejudice is caused to other party, if pre- deposit amount is accepted and the appeal was directed to be heard on merits. 9. Shri S.A. Dharmadhikari, learned counsel appearing for the Revenue refuted the aforesaid contentions advanced on behalf of the appellant and argued that in the case of Balaji Steel Re-Rolling Mills (supra) the position was different. In the present case appellant failed to deposit pre-deposit amount, even though adequate time was granted for the same on 12-12-2012 and thereafter when the orders were passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was sought for, the application was dismissed for want of prosecution, as the counsel so engaged by the appellant did not appear before the learned Tribunal. 12. In the memo of appeal an affidavit has been filed to show that the counsel so engaged on behalf of the appellant did not inform the appellant about the procedure and queries in that regard were also not properly responded to by him. Even though, subsequently an application for restoration was filed on 13-6-2014, which was also dismissed on 20- 01-2015 on the ground that the appellant has not complied with the orders and no justifiable reason is given for its non-appearance on 6-5- 2014. 13. Even though this case pertains to power available to the learned Appellate Tribunal to pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant, which also came to be dismissed by the learned Tribunal on 20-01-2015. 16. In the facts and circumstances of the case, we are of the considered view, that the appellant has the right to have its appeal decided on merits on various legal issues, that have been denied by the learned Appellate Tribunal, for non-appearance of the party and nondeposit of pre-deposit amount. 17. On a careful reading of the decisions rendered by the apex Court in Balaji Steel Re-Rolling Mills (supra) and M/s Kisaan Gramodyog Sansthan and others (supra) as well as the judgement of Karnataka High Court in Aditya Horological Ltd. (supra), we are of the considered opinion, that in all the cases, the principle laid down is that all endeavours should be made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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