TMI Blog2014 (5) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... finding that mere conversion of the proprietorship concern into a partnership firm does not evaporate the liability of the erstwhile concern. The petitioner tried to take shelter under a mistaken advice and also deriving a clue from the correction made in an order passed in an earlier writ petition. Section 35C does not provide for condonation of delay in making out an application beyond the stipulated period of six months from the date of the order. When the statute has provided the maximum period of limitation, the tribunal cannot pass an order condoning the delay of more than the prescribed period in absence of any express power to do so. Equally the Court cannot direct the authority to act contrary to the law - Decided against assessee. - W. P. No. 236 of 2014 - - - Dated:- 30-4-2014 - Harish Tandon,JJ. For the Petitioner : Mr. Sandip Agarwal, Mr. J. P. Khaitan and Mr. S. Dasgupta For the Respondent : Mr. S. B. Saraf and Mr. T. M. Siddiqui ORDER Harish Tandon,J. In the second round of litigation before this Court, the writ petitioner has assailed the order dated 4th March, 2014 passed by the Customs, Excise and Service Tax Appellate Tribunal, Kolkat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent the abuse of its process or to secure the ends of justice. Thus it is submitted that if the tribunal has a power to dismiss the appeal, it has further power to recall the order and restore the appeal, by placing reliance upon a judgment of the Supreme Court rendered in case of J. K. Synthetics Ltd. - vs- Collector of Central Excise reported in 1996 (86) ELT 472 (SC) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a separate legal entity. In fact, on the aforesaid plea, the earlier writ petition was filed before this Court which stood dismissed with a categorical finding that mere conversion of the proprietorship concern into a partnership firm does not evaporate the liability of the erstwhile concern. The petitioner tried to take shelter under a mistaken advice and also deriving a clue from the correction made in an order passed in an earlier writ petition. It admits no quarrel to the proposition of law as laid down by the Supreme Court in case of J. K. Synthetics Ltd (supra) that the tribunal is bestowed with the power to recall its order under Rule 41 of the CEGAT Procedure Rules. In the said report, the tribunal proceeded to decide the matter ex parte and thereafter an application for setting aside the ex parte order was taken out. The tribunal refused to entertain 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 empow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 agree with the view of the learned trial Judge and that for the reasons of the provisions of subsection (1) of section 254 of the Act itself the opportunity of being heard, spoken of in that provision of the Act, is essentially part of the jurisdiction that the Tribunal has been given by the statute; when adequate and reasonable grounds for omission to appear at the hearing are made out to the satisfaction of the Tribunal, it is only a question before the Tribunal as to the adequacy of that opportunity of being heard which sub-section (1) of section 254 enjoins to be given before the Tribunal is enabled to pass orders in the appeal. I am not oblivion of the proposition of law that the Court or the Tribunal should not swayed by the nomenclature of the application but should look into the substance thereof. Paragraph 26 of the said application would depict that the tribunal dismissed the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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