1998 (4) TMI 136 - HC - Central Excise

Summary

Issues Involved:
1. Constitutionality of Rule 20 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982.
2. Interpretation of Section 35C(1) of the Central Excises and Salt Act, 1944 and Section 129B(1) of the Customs Act, 1962.
3. Power of the Appellate Tribunal to dismiss appeals for default of appearance.

Summary:

1. Constitutionality of Rule 20:
The primary issue was whether Rule 20 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982, which allows the Appellate Tribunal to dismiss an appeal for default of appearance, is ultra vires the provisions of Section 35C(1) of the Central Excises and Salt Act, 1944, and Section 129B(1) of the Customs Act, 1962. The petitioners argued that the Tribunal must dispose of appeals on merits and has no power to dismiss an appeal for default.

2. Interpretation of Section 35C(1) and Section 129B(1):
Section 35C(1) of the Excise Act and Section 129B(1) of the Customs Act require the Appellate Tribunal to pass orders on the merits of the appeal. The term "thereon" in these sections restricts the jurisdiction of the Tribunal to the subject matter of the appeal, implying that the Tribunal must decide on the merits of the case and cannot dismiss it solely due to the absence of the appellant.

3. Power of the Appellate Tribunal to Dismiss Appeals for Default:
The judgment referenced the Supreme Court's decision in Commissioner of Income-Tax, Madras v. S. Channlappa Mudaliar, which held that the Appellate Tribunal has no power to dismiss an appeal for non-appearance of the appellant and must decide the appeal on merits. The High Court concluded that Rule 20, which allows for dismissal due to default of appearance, is inconsistent with the statutory provisions requiring decisions on merits.

Judgment:
The High Court declared that the part of Rule 20 enabling the Appellate Tribunal to dismiss an appeal for default of appearance is ultra vires the provisions of Section 35C(1) of the Excise Act and Section 129B(1) of the Customs Act. Consequently, the orders dismissing the appeals for default and rejecting the applications for restoration were set aside and quashed. The Appellate Tribunal was directed to dispose of the appeals on merits in accordance with the law. The petitions were allowed, and Rule 20 was struck down as unconstitutional.