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TMI Blog2018 (3) TMI 1397X X X X Extracts X X X X X X X X Extracts X X X X ..... uch manner of disposal of the Appeal is impermissible, given the language of Section 129 E of the Customs Act, 1962. 3. Section 129 E of the Customs Act, 1962, prior to its substitution by Act 25 of 2014, with effect from 6th August, 2014, read as under: "129E. Deposit, pending appeal, of duty and interest, demanded or penalty levied. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty and interest demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer duty and interest demanded or the penalty levied: Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of the opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue: Provided f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tay application has not been challenged by this appellant, he cannot take advantage of an order passed by this Court in the appeal of some other assessee. 9. Ms. Cardozo would submit that the appeal be dismissed. 10. After hearing both sides and perusing the order under challenge, we are of the opinion that the present appeal raises substantial question of law. The substantial question of law is as under: (i) Whether in the facts and circumstances of the case, the Appellate Tribunal was justified in dismissing the Appeal No. C/87446/14-Mum filed by the Appellant without examining the merits under Section 129E of the Act in view of the Order dated 16.11.2015 of this Hon'ble High Court granting unconditional waiver of the requirement of pre-deposit in case of other importers and thereby, quashing and setting aside the Order No. S/1193-1194/14/CSTB/CI dated 20.10.2014 of the Appellate Tribunal to make pre-deposit?" 11. With the consent of both sides, we have perused the paper-book and necessary document, which is necessary for the disposal of this Appeal by the present final order. We proceed to dispose of the appeal itself at the stage of admission and with the consent of bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal No.43 of 2015 and other appeals, including the appeal of the Gupta Coals (Supra) being Customs Appeal No.78 of 2015, came to be allowed on 16th November, 2015, by this Court. Thus, there were throughout orders and which either granted relief to the assessee or refused it. There was an order pointed out by the Tribunal itself, but, passed by its Bench at Bangalore. There was a differing order passed in identical circumstances by the Bench of Tribunal at Chennai. It is in these circumstances, when this Court was of the opinion that there is an arguable point and no conditions be attached or imposed for grant of stay against recovery pending the appeal. 13. We are not as much going into the arguments of Ms. Cardozo that no benefit can be derived of this order of 16th November, 2015, and passed in the case of another assessee when the initial order of stay was not challenged by the Appellant-assessee in this Court. She would submit that the assessee before us in this Appeal was bound and liable to comply with the conditional stay order. If it did not report compliance and if it did not remain present as well for the final hearing of the appeal, the assessee does not therefore des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 wherein this Court considered the provisions of Section 33 of the Income-tax 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich can only be done if the appeal is disposed of on the merits and not dismissed owing to the absence of the appellant. It was laid down as far back as the year 1953 by S.R. Das, J. (as he then was) in CIT, v. Mtt. Ar. S. Ar. Arunachalam Chettiar 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 Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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