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TMI Blog2002 (1) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... re-5) dated 5-2-2001. The principal contention is that the Tribunal is not empowered to dismissed an appeal for default of appearance but has to decide the same on merit in view of the expression "thereon" used in Section 35C(1) of the Central Excises Salt Act, 1944. 2.The necessary facts giving rise to the instant writ petition are that petitioner-Company is a manufacturer and processor engaged in manufacture of textile fabrics falling under different headings of the Schedule to the Central Excise Tariff Act, 1985. It clears duty for the goods in accordance with the provisions of the Act and the rules made thereunder. The petitioner was served with a show cause notice to reverse the deemed Modvat credit of Rs. 47,249/- alleged to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellate Tribunal has to be disposed of. Section 35C(1) of the Central Excises Salt Act is extracted as follows :- "35C(1) : The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary." 4.Section 129A of the Customs Act provides that any person aggrieved by any of the orders mentioned in sub-section (1) thereof, may appeal to the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India reported in [1998 (100) E.L.T. 335 (Guj.)] has declared that the Appellate Tribunal has no power to dismiss the appeal for non-appearance of the appellant and the appeal should be decided on merit. 6.That scheme of the provisions of the two Acts relating to the Appellate Tribunal apparent is that it has to dispose of an appeal by making such orders as it thinks fit on merit. It follows from the language of Section 35C(1) of the Excise Act and Section 129B(1) of the Customs Act and particularly the expression used "thereon" that the Tribunal 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conferred upon the Appellate Assistant Commissioner by Section 31 of the Act. The provisions contained in Section 66 about making a reference on questions of law to the High Court will be rendered nugatory if any such power is attributed to the Appellate Tribunal by which it can dismiss an appeal, which has otherwise been properly filed, for default without making any order thereon in accordance with Section 33(4). The position becomes quite simple when it is remembered that the assessee or the Commissioner 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court should be sought?" Thus, looking at the substantive provisions of the Act there is no escape from the conclusion that under Section 66(4) of the Appellate Tribunal has to dispose of the appeal on the merits and cannot short-circuit the same by dismissing it for default of appearance. Now, although Rule 24 provides for dismissal of an appeal for the failure of appellant to appear, the rules at the material time did not contain any provision for restoration of the appeal. Owing to this difficulty some of the High Courts had tried to find an inherent power in the Tribunal to set aside the order of dismissal (vide Shri Bhagwan Radha Kishan v. Commissioner of Income-tax and Mangat Ram Kuthiala v. Commissioner of Income-tax). There i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merit. It is, thus, evident that the manner and method in which the appeal filed before the Appellate Tribunal under the provisions of the Income Tax Act, 1922 is required to be disposed of are the same as envisaged under Section 35C(1) of the Excise Act as well as Section 129B(1) of the Customs Act. Therefore, the decision rendered by the Supreme Court in Mudaliar's case applies to the instant controversy with full force. Thus, there is no manner of doubt that the appeal filed before the Tribunal has to be disposed of on merit and cannot be dismissed for want of appearance of the appellant. A Division Bench of the Delhi High Court in Prakash Fabrics v. Union of India reported in [2001 (130) E.L.T. 433 (Del.) = 2001(44) RLT Page 459] dealin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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