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2022 (9) TMI 319 - HC - Service TaxEx-party order - Validity of rejection of appeal by the CESTAT - Assessee / Petitioner could not appear due to non-receipt of notice - Refund of service tax - refund was rejected on the ground that the Petitioner, having opted to discharge Service Tax liability through a challan, should not have debited the same amount from its CENVAT Credit Account - Section 11B of the Central Excise Act, 1944 - HELD THAT:- In the Balaji Steel Case [2014 (11) TMI 531 - SUPREME COURT], it has been held that in an Appeal filed under Section 35 C (1) of the CE Act, the use of the words “pass such orders thereon as it thinks fit” as appearing in the provision, enjoins the Tribunal to pass an Order on the Appeal confirming, modifying or setting aside the decision or order appealed against or it may remand the matter. It does not give any power to the Tribunal to dismiss the Appeal in default or for want of prosecution if the appellant is not present when the Appeal is taken up for hearing. Admittedly the CESTAT while passing the Final Order and even the Restoration-Dismissal Order erred in law in not hearing the matter on merits. In the Final Order, the CESTAT dismissed the Appeal for non-prosecution. When the Restoration Application was filed by the Petitioner, it was incumbent on the CESTAT to at least ensure that the Petitioner is served the notice to appear, at the correct address especially in view of the fact that the Petitioner’s Appeal has dismissed for non-prosecution. However, it is apparent that there was once again non-application of mind by the learned CESTAT. The Petitioner is not a small individual trader who is operating out of a premises that is not locatable. The Petitioner is the “Delhi International Airport Limited” whose addresses and contact details in addition to being available online, could have easily been ascertained by the CESTAT. Petition allowed.
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