TMI Blog2014 (1) TMI 1471X X X X Extracts X X X X X X X X Extracts X X X X ..... sal of the rules, it can thus be revealed that though Rule 20 permits dismissal of an appeal on account of non-appearance of the appellant, proviso thereto enables the learned Tribunal to restore the appeal on the assessee making out a sufficient cause for his non-appearance when the appeal was dismissed. It can further be seen that apart from that, Rule 41 enables the Tribunal to make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice. It can thus clearly be seen that under Rule 41, the learned Tribunal has ample powers which can be used to prevent the abuse of its process or to secure the ends of justice. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. Along with an appeal an application for stay of the order impugned before the learned CESTAT was also filed. In so far as the present respondent/assessee is concerned, vide order dated 4th February, 2011 the learned Tribunal directed the respondent herein to make deposit of Rs.4,00,000/- (Rupees four lacs only) within a period of 8 weeks and report compliance on 6th May, 2011. The learned Tribunal directed that on payment of the above sum, balance amount of penalties on the respondent and other co-applicants was to remain stayed. Vide order dated 10th June, 2011 on account of non-compliance of order dated 4th February, 2011, the learned Tribunal dismissed the appeal. The respondent herein subsequently deposited an amount of Rs.4,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the judgment of the Apex Court in the case of J.K. Synthetics Ltd. v. Collector of Central Excise [1996] 6 STC 92. 5. For considering the rival submissions, it will be necessary to refer to Rules 20 and 41 of the said rules which read thus: "Rule 20.Action on appeal for appellant's default: Where on the day fixed for the hearing of the appeal or on any other day to which such hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Tribunal may, in its discretion, either dismiss the appeal for default or hear and decide it on merits: Provided that where an appeal has been dismissed for default and the appellant appears afterwards and satisfies the Tribunal that there was suffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quire that the ex-parte order against him should be set aside. Not to do go on the ground of lack of power would be manifest injustice. Quite apart from the inherent power that every tribunal and court constituted to do justice has in this respect, CEGAT is clothed with express power under Rule 41 to make such order as is necessary to secure the ends of justice. CEGAT has. therefore, the power to set aside an order passed ex- parte against the respondent before it if it is found that the respondent had, for sufficient cause, been unable to appear." 7. It can thus be clearly seen that Apex Court in clear terms held that Rule 41 entitles the learned Tribunal to make such orders as it is necessary to secure the ends of justice. It is further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Nani Gopal Biswas v. Municipality of Howrah 1958 SCR 774 at p. 779 : (AIR 1958 SC 141 at pp.142-43" 9. In that view of the matter, as has been held by the Apex Court in the case of J.K. Synthetics Ltd. (supra), under Rule 41 the CESTAT has wide powers to prevent abuse of its process and to secure the ends of justice. As such, though the application was filed under Rule 20, it will have to be held that jurisdiction exercised by the learned Tribunal was under Rule 41 of the said Rules. 10. Apart from that, the similar view has been taken by the Division Bench of Gujarat High Court in the aforesaid three matters, stating therein that in the absence of any provision in the Act or Rules specifically prohibiting restoration of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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