TMI Blog2014 (11) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... taken up for hearing - as the two provisions are similar, we are of the considered opinion that the Tribunal could not have dismissed the appeal filed by the appellant for want of prosecution and it ought to have decided the appeal on merits even if the appellant or its counsel was not present when the appeal was taken up for hearing. The High Court also erred in law in upholding the order of the Tribunal. - Decided in favour of assessee. - Civil Appeal No. 10265 of 2014 (Arising out of Special Leave Petition (C) No. 8738 of 2014) - - - Dated:- 14-11-2014 - Anil R. Dave, Kurian Joseph And R. K. Agrawal,JJ. For the Petitioner : Mr. Shashibhushan P. Adgaonkar, Adv. For the Respondent : Mr. K. Radhakrishnan, Sr. Adv. Ms. Sunita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bay, Bench at Aurangabad being Central Excise Appeal No. 14 of 2013. The High Court, by order dated 18.01.2014, dismissed the appeal on the ground that no substantial question of law arises for consideration. 4) Against the said order, the appellant has preferred this appeal by way of special leave. 5) Heard Mr. Shashibhushan P. Adgaonkar, learned counsel for the appellant and Shri K. Radhakrishnan, learned senior counsel for the respondent. 6) Learned counsel for the appellant submitted that even if the appellant was not present before the Tribunal when the appeal was taken up for hearing, it could not have been dismissed for want of prosecution as Section 35C of the Central Excise Act, 1944 (in short `the Act') enjoins upon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. 10) Rule 20 of the Rules which gives a power to the Tribunal to dismiss the appeal for default in case the appellant does not appear when the appeal is called on for hearing reads as under:- 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any such orders to the assessee and to the Commissioner. Rule 24 of the Appellate Tribunal Rules, 1946 24. Where on the day fixed for hearing or any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Tribunal may dismiss the appeal for default or may hear it ex parte. Considering the aforesaid provisions, this Court held as under:- 7. The scheme of the provisions of the Act relating to the Appellate Tribunal apparently is that it has to dispose of an appeal by making such orders as it thinks fit on the merits. It follows from the language of Section 33(4) and in particular the use of the word thereon that the Tribunal has to go into the correctnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself has passed proper order under Section 33(4). It follows from all this that the Appellate Tribunal is bound to give a proper decision on questions of fact as well as law which can only be done if the appeal is disposed of on the merits and not dismissed owing to the absence of the appellant. It was laid down as far back as the year 1953 by S.R. Das, J. (as he then was) in CIT, v. Mtt. Ar. S. Ar. Arunachalam Chettiar that the jurisdiction of the Tribunal and of the High Court is conditional on there being an order by the Appellate Tribunal which may be said to be one under Section 33(4) and a question of law arising out of such an order. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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