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2018 (10) TMI 23 - HC - Central ExciseRestoration of appeal - Appeal was dismissed for non-appearance - both the Official Liquidator as well as the appellant herein were not represented by counsel - company under winding up proceedings - Whether the impugned order of the Tribunal is bad in law for departing from the following principles: (i) by virtue of Article 141 of The Constitution of India, the issue must be decided strictly in accordance with law laid down by the Supreme Court, it being the last word on the subject? and (ii) if, there is no decision of the Supreme Court on the issue, then the effort must be to decide the issue by any decision of the High Court of our country, if holding the field? Held that:- The Tribunal had not adverted to any of the contentions raised by the appellant in the application for restoration dated 09.10.2017. In the said application, the appellant pointed out certain reasons, which, according to him, were sufficient cause for not being able to appear before the Tribunal on 02.8.2017. Apart from that, he relied upon the decisions of the Hon'ble Supreme Court and of the Gujarat High Court to state that the appeal could not have been dismissed for default and should have been decided on merits in the light of the fact that Rule 20 of the 1982 Rules has been held to be ultra vires. The appellant also pointed out that the Tribunal has sufficient power to restore the appeal in terms of Rule 41 of the 1982 Rules. None of these grounds has been dealt with by the Tribunal. Rather, the Tribunal has not even referred to the same in the impugned order. In the decision in Viral Laminates (P) Ltd. [1998 (4) TMI 136 - HIGH COURT OF GUJARAT AT AHMEDABAD], the challenge was to Rule 20 of the Customs, Excise and Gold (Control) Appellate Tribunal Rules, 1982, which enables the Tribunal to dismiss the appeal for default of appearance, as being ultra vires the provisions of Section 35C(1) of the Act and Section 129B(1) of the Customs Act, 1962. The Division Bench of the Gujarat High Court held that having regard to the scheme of the Act as well as the Customs Act, 1962, there was no manner of doubt that the appeal filed before the Appellate Tribunal has got to be disposed of on merits and not for default of appearance of the appellant. It is not clear as to whether notice was served in the office of the Official Liquidator nor there was any proof of service produced. In any event, the impugned order, being an order without jurisdiction deserves to be set aside. The impugned order dated 12.2.2018 is set aside and the matter is remanded to the Tribunal for a fresh consideration with a direction to restore the appeal filed by the appellant - appeal restored.
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