Home Case Index All Cases Central Excise Central Excise + HC Central Excise - 2019 (11) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (11) TMI 1523 - HC - Central ExcisePrinciples of natural justice - appellant submitted that the impugned order has been passed without affording any effective hearing to the appellant - whether the Tribunal was justified in adjudicating the appeal on merits in the absence of the counsel or the appellant on the date of hearing? - HELD THAT:- On conjoint reading of sub-rule (1) of Rule 17 and the Explanation appended thereto, it is clear that the aforesaid provision enables the Appellate Court to adjourn the case to some future date but it does not empower the Appellate Court to adjudicate the appeal on merits, or it can pass such other order as it thinks proper in the circumstances of the case. There is nothing in the Rule which provides that when the appellant does not appear and the respondent appears, the appeal shall be disposed of ex parte. If that were the intention of the Legislature, a clear mandate to the said effect would have been incorporated in the Rule. The intent of the Legislature in enacting this provision is that under Rule 17, the appeal should not be dismissed on merits in the absence of the appellant but it may be dismissed in default so that the appellant may avail of the remedy provided under Rule 19. Inasmuch as when an appeal is dismissed under Rule 17, the appellant is entitled to apply to the Appellate Court for readmission of the same under Rule 19 of Order XLI of the Code, where the appellant will have an opportunity to prove that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing and if the Court is satisfied, re-admission of the appeal shall be permissible. It is noticed that the appellant did not appear on the date of hearing despite notice. However, once the Appellate Tribunal found that the show cause notice was issued proposing to impose penalty under Rule 15 of the Cenvat Credit Rules, 2004, whereas, the penalty under Section 11AC of the Act was attracted and consequently, imposed penalty under Rule 26 of the 2002 Rules, the appellant ought to have been heard before passing the impugned order. In this view of the matter, the impugned order is not sustainable in the eye of law. The substantial question is answered in favour of the appellant - matter is remanded to the Appellate Tribunal to decide the appeal on merits afresh after hearing the counsel for the parties in accordance with law - Appeal allowed.
|