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2015 (7) TMI 341

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..... e 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 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. Dhar .....

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..... on for Restoration of Appeal. In these circumstances, the application for ROA deserves no merit hence 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 appeal was belated, there is sufficient cause for the delay and that the petitioner deserves an adjudication of the appeal on merits. The learned Counsel .....

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..... 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 the judgment of the Hon'ble Supreme Court is clear inasmuch as the Hon'ble Supreme Court referred to Section 35C of the Central Excise Act,1944. That section 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& .....

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..... appeal, the Tribunal could have imposed some reasonable conditions but even that has not been done. 7. As a result of the above discussion and without deciding any wider controversy, we allow this Writ Petition. We set aside the order passed by the Tribunal on 29.11.2013 and restore the appeal of the petitioner to the file of the Tribunal for decision on merits and in accordance with law but on the condition that the appellant /Petitioner pays costs of ₹ 15,000/( Rupees Fifteen thousand only). The costs shall be condition precedent and to be deposited with the respondents within a period of two weeks from receipt of copy of this order. If the proof of such deposit is produced before the Tribunal's Registry, the Tribunal shall r .....

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