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2018 (1) TMI 1268

Head Note:
Maintainability of appeal - rectification of mistake application - Whether respondent no. 2 i.e. the tribunal has erred in rejecting the appeal at the stage of final disposal of appeal without taking into consideration the fact that the appeal has already been admitted after compliance of part payment of duty amounting to ₹ 25,544/- as per the stay order no. S/56/12/SMB/C-IV dated 1st May, 2012? - Held that: - In the present case, the assessee pointed out that the appeal was already admitted. The proviso could not have been invoked in this case post admission. Therefore, the appeal could not have been dismissed on the ground on which it has been dismissed, namely, without adjudication on merits - Once the appeal was admitted in this case and kept pending, then, no useful purpose is served by dismissing it at the final hearing on the ground of maintainability. Ultimately, it is a discretion vesting in the tribunal, which it must exercise judiciously and not capriciously.

The order under appeal, which would include the order on rectification of mistake application set aside - appeal is restored to the tribunal's file for adjudication on merits in accordance with law.

 


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