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TMI Blog2019 (8) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... ills Vs. Commissioner of Central Excise and Customs [ 2014 (11) TMI 531 - SUPREME COURT] , wherein it is held that the provisions of 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. The matter is relegated to the Tribunal for decision in appeal on merit after affording an opportunity of hearing to the parties - Petition disposed off. - W.P.No. 1571/2015 - - - Dated:- 7-8-2019 - Sanjay Yadav And Vivek Agarwal JJ. Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice on 23.11.2007 and the order thereon 12.3.2010 under section 73 of the Finance Act, 1994 directing the petitioner to deposit of service tax of ₹ 44,42,545/- and Education Cess on Cargo Handling Services undertaken on contract and completed for the National Fertilizers Ltd. Guna during the period between 2004-2005 and 2006-2007. The show cause notice also proposed the penalty under sections 76, 77 and 78 and interest under section 75 of 1994 Act, in case of non-payment. (3) After due deliberation and by overruling the contention on behalf of the respondent that an appeal under section 35(G) of the Excise Act, 1944 will lie instead of a Writ Petition under Article 226/227 of Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Income Tax 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. 12. Considering the aforesaid provisions, this Court held as under:- (S. Cheniappa Mudaliar case, SCC pp. 595-96, para 7) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Income Tax, if aggrieved by the orders of the Appellate Tribunal, can have resort only to the provisions of Section 66. So far as the questions of fact are concerned the decision of the Tribunal is final and reference can be sought to the High Court only on questions of law. The High Court exercises purely advisory jurisdiction and has no appellate or revisional powers. The advisory jurisdiction can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself has passed proper order under Section 33(4). It follows from all this that the Appellate Tribunal is bound to give a proper decision on questions of fact as well as law which can only be done if the appeal is disposed of on the merits and not d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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