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TMI Blog2022 (10) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... w cause notice dated 26.05.2008, a demand of central excise duty to the tune of Rs. 13,81,755/- was raised under the proviso to Section 11A(1) of the Act. In response to the same, reply was filed on 16.06.2008 by the appellant on merits. Learned Additional Commissioner rejected the submissions made by the appellant in reply and vide Order-in-Original No. 58/2009 dated 06.11.2009, confirmed the demand raised along with equivalent penalty and interest. The matter was agitated by the appellant before the learned Commissioner (Appeals) who vide Order-in-Original dated 30.03.2010 upheld the above said Order-in-Original dated 06.09.2009. 3. Being aggrieved by the same, under Section 35G of the Act, appeal was preferred before the CESTAT (Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant/his counsel? And second, Whether the Tribunal can dismiss the appeal without considering the merits of the case? 6. In the case in hand, on 22.12.2016 the matter was taken up by the Tribunal after six years in Central Excise Appeal which was filed in the year 2010. For the reasons best known to the registry of the Tribunal or to the appellant's counsel, none appeared for the appellant. The Tribunal dismissed the appeal in default without considering the case on merits. Against the same, recalling application was filed as the concerned advocate could not make alternative arrangements, who was situated at Jaipur and the Tribunal was situated in Delhi. He submitted that nonappearance was not deliberate. He cited Hon'ble Apex Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal are well reasoned. The restoration application was filed after an inordinate delay of time and even after that, the appellant was slipshod about the same and failed to appear at the necessary time, wasting precious time and resources of the learned Tribunal which clearly reflects his careless attitude and therefore, he does not deserve any sympathy. With regard to his contentions he has relied upon the judgments in the cases of Kirtikumar Jawaharlal Shah Vs. Union Of India reported in 2012 (10) TMI 228 (Bom) and L. J. Synthetic Mills Vs. Commissioner of C. Ex., Ahmedabad-I reported in 2011 (270) ELT 507 (Guj), wherein it was held that when there is a delay which is not sufficiently explained, the court should be slow in entertaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal shall make an order setting aside the dismissal and restore the appeal." 12. On perusal of the said rules and upon placing reliance on Hon'ble Apex Court judgment of Balaji Steel Re-rolling Mills (supra), it is absolutely clear that no exparte order of dismissal for non-prosecution can be passed by the Tribunal and the appeal cannot be dismissed for absence of appellant. The CESTAT is duty bound to decide the appeal on merits as Section 35C of the Act only enables CESTAT, which is a Statutory Appellate Authority, to pass the order on appeal either confirming, modifying or annulling the decision or order appealed against or it may remand the matter. The provision of Rule 20 of the CESTAT Rules gives the power to the Tribunal to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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