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TMI Blog2018 (9) TMI 1113X X X X Extracts X X X X X X X X Extracts X X X X ..... not conferred with the discretion to dismiss the appeal for want of prosecution. The impugned order is set aside - The matter is relegated to the Appellate Board for decision in appeal on merits. X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal for want of prosecution. A similar issue has been decided by the Supreme Court in Balaji Steel Re-Rolling Mills Vs. Commissioner of Central Excise and Customs [(2014) 16 SCC 360], wherein their Lordships while dwelling on Section 35-C of the Central Excise Act, 1944 and Rule 20 of the Rules made thereunder, were pleased to hold:- "10. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l has to go into the correctness or otherwise of the points decided by the departmental authorities in the light of the submissions made by the appellant. This can only be done by giving a decision on the merits on questions 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, (1967) 63 ITR 232 (SC), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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., (1961) 42 ITR 589 (SC) 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: (ITR p. 609) '…. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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