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2022 (10) TMI 194 - HC - Central ExciseMaintainability of appeal - appeal can be dismissed for want of non-appearance or non contest by the appellant/his counsel or not - Whether the Tribunal can dismiss the appeal without considering the merits of the case? - Section 35C of the Act and Rule 20 of the Rules - HELD THAT:- On perusal of the said rules and upon placing reliance on Hon’ble Apex Court judgment of BALAJI STEEL RE-ROLLING MILLS VERSUS COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS [2014 (11) TMI 531 - SUPREME COURT], 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 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 registration of the same. Counsel for the appellant was situated in Jaipur, the seat of the Tribunal was situated in Delhi and the impugned orders were passed after six years, only for his non-appearance. The matter was dismissed in default without any genuine reasons and opportunity. In the case in hand, the direct judgment of the Hon’ble Apex Court referred in Balaji Steel Re-rolling Mills, was not considered and overlooked inspite of specific reference in the applications - Appeal allowed.
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