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2015 (7) TMI 341 - BOMBAY HIGH COURT

2015 (7) TMI 341 - BOMBAY HIGH COURT - 2015 (324) E.L.T. 290 (Bom.) - Restoration of appeal - Appeal dismissed for non prosecution - Held that:- section 35C deals with the orders of the Appellate Tribunal. In that section, there is no power conferred upon the Tribunal, according to the Hon'ble Supreme court, of dismissing the appeal for want of prosecution. The judgment of the Hon'ble Supreme Court [2014 (11) TMI 531 - SUPREME COURT] construed subsection (1) of Section 35C of the Act and holds t .....

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unal to pass order on the appeal confirming, modifying or annulling the decision or order appealed against or it may remand the matter, then, that power under the Section does not include dismissal of appeal for default or for want of prosecution. - Opportunity should have been granted to assessee - Impugned order is set aside - Decided in favour of assessee. - Writ Petition No. 1319 of 2015 - Dated:- 29-6-2015 - S. C. Dharmadhikari And G. S. Kulkarni,JJ. For the Appellant : Ms Swapna V Gokhale .....

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tion of Appeal. 2. Heard both sides. 3. The appeal filed by the applicant was dismissed by this Tribunal on 13.09.2010 for nonprosecution. It was observed by the Tribunal that the matter was listed for hearing on 9.7.2010. On the said day the learned Advocate appearing on behalf of the applicant sought adjournment. Therefore, the matter was posted for hearing on 09.08.2010. On 9.8.2010 none appeared on behalf of the applicant nor any request for adjournment has been received but again, in the in .....

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nce dismissed." The petitioner's Counsel submits that the Tribunal has no power to dismiss the appeal for want of prosecution. The appeal arose out of an order dated 6.10.2009 passed by the Commissioner of Central Excise (Appeals), Mumbai. The petitioner approached the Tribunal because the Commissioner had dismissed the petitioner's appeal challenging the order in original. 3. The Tribunal should have given an opportunity to the appellant/petitioner to satisfy it that though the app .....

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The petitioner's case as pointed out from the admitted facts is that the order of adjudication/ order in original was passed on 27.11.2008. Being aggrieved by it, the Commissioner (Appeals), Central Excise was approached and who on an application for stay/dispensation of the condition of predeposit, passed an order on 25.8.2009. He ordered deposit of 50% of the confirmed demand and penalty. This order was not complied with by the petitioner and therefore, the appeal before the Commissioner s .....

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down by the Hon'ble Supreme Court would not apply. In any event, once the condition is imposed by an Appellate Authority and that condition is not complied with then, the default or non compliance must visit the assessee with dismissal of his appeal and without adjudication on merits. In the circumstances, there is no error or infirmity in the impugned order and the petition should be dismissed. 5. After having heard both the sides and perusing the impugned order, we are of the view that th .....

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er power will not include the situation where an appeal can be dismissed without adjudication on merits or for want of prosecution. A reference is also made to Rule 24 of the Appellate Tribunal Rules,1946 under the Income Tax Act,1922 and equally Rule 20 of the subject Rules. Though the rule may be giving power to the Tribunal to dismiss in its discretion an appeal for default yet, construing its wording the Hon'ble Supreme Court holds that when the Act enjoins upon the Tribunal to pass orde .....

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cation on merits, then, it could have given an opportunity to the petitioner to argue its appeal and satisfy the Tribunal that the order of the Commissioner is required to be annulled or modified or the case must go back to him. That opportunity should have been granted by condoning the delay in filing the appeal or by restoration of the appeal. While condoning the delay and restoring the appeal, the Tribunal could have imposed some reasonable conditions but even that has not been done. 7. As a .....

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