9911796707
TMI Blog2014 (5) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 35 (C) (2) of the Central Excise Act, 1944. The undisputed facts are that one Maram Lakshmi Narayana was carrying out the business as proprietor in the trade name and style of "Shree Ganesh Forging Company" and committed default in payment of excise duty. A proceeding was initiated against the proprietor who subsequently died in the midst of the proceedings. According to the department, the factum of death of the said proprietor was not communicated and the authority proceeded to decide the matter imposing the duty and the penalty upon the said proprietor. The petitioner no.2 being the one of the sons of the said deceased preferred in appeal before the tribunal and subsequently made an application for dismissal of the said proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Tribunal misconstrued the purport and/or tenet of the application to be an application for rectification of the mistake apparent on the record though the application was filed for recalling the order and restoration of the appeal. He further submits that the abatement would arise when a person appealing died and no application for substitution is taken out within the prescribed period. According to him, the appeal is filed by the petitioner no.2 who is still alive and the tribunal, in fact, dismissed the matter on an application taken out in this regard. By referring Rule 41 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules 1982, it is sought to be contended that the tribunal may make such orders or give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prescribed period or limitation provided under Section 35 (C) (2) of the said Act. It is strenuously submitted that the petitioner cannot change the stand at the different stages of the proceedings after having taken specific stand that the appeal should abate by filing an application. Lastly it is submitted that the order passed by the Tribunal is amenable to be challenged before this Court by filing a statutory appeal and the writ court should not interfere. Having considered the respective submissions, it is no doubt true that the appeal filed by the petitioner no.2 before the tribunal stood dismissed on the basis of an application filed in this regard. The Four Corners of the applications would reveal that a specific stand was take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the said application on the plea that the power to set aside the ex parte order is not provided either in the statute nor in the connected Rules. Overruling the observation of the Tribunal, the Apex Court held: "5. Rule 20 of the CEGAT (Procedure) Rules deals with cases where the appellant has defaulted. Rule 21 empowers CEGAT to hear appeals ex parte. The fact that Rule 21 does not expressly state that an order on an appeal heard and disposed of ex parte can be set aside on sufficient cause for the absence of the respondent being shown does not mean that CEGAT has no power to do so. Rule 41 gives CEGAT wide powers to make such orders or give such directions as might be necessary or expedient to give effect or in relation to its orders o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction is inherent power in an appropriate case to give a party an opportunity of rehearing after the appeal has been disposed of in the absence of the party. * * * * * * * * * * * * * * * * * * * * Mr. Pal, in his fairness, did not contend before us that the learned trial Judge, Sabyasachi Mukharji J; has committed any error in holding that the Appellate Tribunal had inherent jurisdiction, though not by any express provisions, yet ancillary to the jurisdiction given by section 254 of the Income-tax Act to restore and rehear an appeal disposed of on the merits in the absence of any party who has been prevented by reasonable and sufficient cause from appearing before the Tribunal at the date of hearing. We may only add that we fully ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner no.2 who is still alive. The meaningful reading of the said application, it is manifest that the petitioner tried to contend before the tribunal that the recording of an abatement is mistake having committed on the legal advice. Section 35 (C) (2) of the said Act provides the period of six months from the date of the order for rectifying the mistake in the order. It would be relevant to quote Section 35 (C) (2) which reads thus: "35C. Orders of Appellate Tribunal- (2) The Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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