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TMI Blog2018 (10) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the Hon'ble Supreme Court and of the Gujarat High Court to state that the appeal could not have been dismissed for default and should have been decided on merits in the light of the fact that Rule 20 of the 1982 Rules has been held to be ultra vires. The appellant also pointed out that the Tribunal has sufficient power to restore the appeal in terms of Rule 41 of the 1982 Rules. None of these grounds has been dealt with by the Tribunal. Rather, the Tribunal has not even referred to the same in the impugned order. In the decision in Viral Laminates (P) Ltd. [1998 (4) TMI 136 - HIGH COURT OF GUJARAT AT AHMEDABAD], the challenge was to Rule 20 of the Customs, Excise and Gold (Control) Appellate Tribunal Rules, 1982, which enables the Tribunal to dismiss the appeal for default of appearance, as being ultra vires the provisions of Section 35C(1) of the Act and Section 129B(1) of the Customs Act, 1962. The Division Bench of the Gujarat High Court held that having regard to the scheme of the Act as well as the Customs Act, 1962, there was no manner of doubt that the appeal filed before the Appellate Tribunal has got to be disposed of on merits and not for default of appearance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commercial Director of the said company under Rule 26 of the Central Excise Rules, 2002. 4. As against the said Order-in-Original dated 31.12.2012, the said company as well as the appellant herein filed two appeals before the Tribunal. During the relevant time, both the said company as well as the appellant herein were represented by a common counsel. The appellants before the Tribunal sought for waiver of condition of pre-deposit and the Tribunal, between 2014 and 2017, passed certain interim orders, the last of which being on 22.3.2017, in which, the Tribunal noted that the said company was wound up, that the Official Liquidator of this Court was appointed as the Provisional Liquidator in Comp.A.No.1141 of 2014 dated 23.3.2015 and that the Ex-Directors of the said company were directed to file the statement of affairs before the Official Liquidator within 21 days. Thus, the Tribunal, in the said order dated 22.3.2017, ordered notice to the Official Liquidator to inform the Tribunal as to whether he chooses to be necessary respondent in the appeals and if he chooses to do so, he may file an appropriate application. 5. When the cases came up for hearing before the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order, held that if the appellant herein was interested in prosecuting the matter, he ought to have appeared and argued the matter and that till the dismissal of the appeal, there was no representation for either the Official Liquidator or the co-noticee (appellant herein). Thus, the Tribunal concluded that the appellant herein was not diligent to prosecute the matter and that the appeal was rightly dismissed for default holding that there was no merit in the application for restoration of the appeal. 9. We have heard Ms.D.Naveena, learned counsel appearing for the appellant and Mrs.Aparna Nandhakumar, learned Senior Standing Counsel appearing for the respondent/Revenue. 10. On a perusal of the impugned order passed by the Tribunal, we find that the Tribunal had not adverted to any of the contentions raised by the appellant in the application for restoration dated 09.10.2017. In the said application, the appellant pointed out certain reasons, which, according to him, were sufficient cause for not being able to appear before the Tribunal on 02.8.2017. Apart from that, he relied upon the decisions of the Hon'ble Supreme Court and of the Gujarat High Court to state t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, was as to whether the Tribunal has the power to dismiss an appeal for want of prosecution or not. The Hon'ble Supreme Court took note of the decision in the case of CIT Vs. S.Chenniappa Mudaliar [reported in (1969) 1 SCC 591] wherein the Hon'ble Supreme Court considered the provisions of Section 33 of the Income Tax Act, 1922 and Rule 24 of the Income Tax Appellate Tribunal Rules, 1946, which gave power to the Tribunal to dismiss an appeal for want of prosecution. It was held that the Appellate Tribunal under the Income Tax Act has to dispose of the appeal on merits and cannot short-circuit the same by dismissing it for default of appearance. Placing reliance on the said decision, the Hon'ble Supreme Court held that the provisions of Rule 20 of the 1982 Rules are similar to that of the provisions of Rule 24 of the Income Tax Appellate Tribunal Rules, 1946 and that the Tribunal could not have dismissed the appeal filed by the appellant for want of prosecution and it ought to have decided the appeal on merits even if the appellant or its counsel was not present when the appeal was taken up for hearing. 13. The aforementioned decision would clearly support th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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