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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 ..... 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 set aside the dismissal and to restore the appeal, if sufficient cause for non-appearance is shown. The use of the work shall in the proviso to Rule 20 even casts an obligation on the Tribunal to restore the appeal. In the case in hand, it was the Tribunal which had taken up the appeal after six years of regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 (Tribunal) wherein vide order dated 22.12.2016, the appeal was dismissed in non-prosecution/ in default for absence of the appellant. Against the same, appellant had filed an application for restoration of appeal and recalling of the order dated 22.12.2016. The said application was dismissed vide order dated 01.08.2018 and therefore present appeal was filed on the following substantial questions of law :- 1. Whether, order passed by the CESTAT dated 1.08 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ault 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 Court judgments reported in 2014 (310) E.L.T. 209 (S.C.) titled as Balaji Steel Re-rolling Mills Vs. Commissioner of C. Ex. Customs, wherein it was held that the Tribunal had no authority to dismiss the appeal in an exparte manner on account of nonappearance/ absence of the appellant without discussing the merits of the case as the statutory mandate of Section 35C of the Act does not give power of dismissal without considering the merits and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the appeals and there is no question of law when there exists an inordinate delay. 10. We have heard and considered the arguments advanced by respective counsels for both sides, perused the judgments cited at Bar and scanned the records of the appeal. 11. Before coming to the issue, it is important to consider the provision of Section 35C of the Act and Rule 20 of the Rules, which reads as under:- Section 35C- Orders of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 set aside the dismissal and to restore the appeal, if sufficient cause for non-appearance is shown. The use of the work shall in the proviso to Rule 20 even casts an obligation on the Tribunal to restore the appeal. 13. In the case in hand, it was the Tribunal which had taken up the appeal after six years of registration of the same. Counsel for the appellant was situated in Jaipur, the seat of the Tribunal was sit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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