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2015 (7) TMI 385 - BOMBAY HIGH COURT

2015 (7) TMI 385 - BOMBAY HIGH COURT - 2015 (323) E.L.T. 278 (Bom.) - Failure to comply with the order of pre-deposit - tribunal dismissed the appeal - Whether the Tribunal was justified in law in passing its order dated 14.10.2013 decline the appeals on merits for the reason the action stated in para 3 of its's order - Held that:- The tribunal has to be specifically vested with the power to dismiss the appeal for want of prosecution. We are inclined to apply the law laid down by the Hon'ble Sup .....

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ve never been questioned by the appellant and rather he has accepted the same. He therefore, cannot be permitted to wriggle out of the same and by relying on the present state of law as emerging from the judgment of the Hon'ble Supreme Court of India.

The consequences of a breach of such a conditional order was also not an issue before the Hon'ble Supreme Court in the above judgment. The law laid down in the above decision cannot be stretched and applied to a situation where the cond .....

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itional stay. He did not comply with that condition as well. Rather he did not comply with the conditions imposed by the tribunal as well. - Decided against assessee. - Central Excise Appeal No. 57 of 2014, Central Excise Appeal No. 58 of 2014 - Dated:- 9-6-2015 - S. C. Dharmadhikari And G S Kulkarni,JJ. For the Appellant : Mr Prakash V Dhopatkar For the Respondent : Mr A S Rao a/w Ms Suchitra Kamble JUDGMENT P.C. 1. These appeals of the assessee challenge the order passed by the Customs Excise .....

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h the conditions imposed while granting stay of recovery of taxes during the pendency of the appeal. In other words, he submits that though the appellant did not comply with the condition and the appeal was dismissed by virtue of the selfoperative order passed at the stage of grant of stay, still the tribunal should have heard the appeal on merits. That is a right vested in the assessee. In support of these submissions, reliance is placed on a recent judgment of the Hon'ble Supreme Court of .....

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the right of appeal conferred by the statute. The assessee does not dispute that the assessee invoked the power of the Appellate Authority to grant waiver of the condition of predeposit of taxes and stay of recovery of taxes pending disposal of the appeal. The assessee does not dispute that the Authority could have imposed conditions while granting such a stay. In the instant case, it imposed a very reasonable condition and thus granted stay of the recovery pending appeal. The appellant-assessee .....

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ng perused the paper book, we are of the view that the appeal deserves to be admitted on the following substantial question of law:- 1. "Whether the Tribunal was justified in law in passing its order dated 14.10.2013 decline the appeals on merits for the reason the action stated in para 3 of its's order?" 5. By consent this Appeal is disposed off finally by this order. The basic facts and which are undisputed are that the appellant before us is a Director of a company registered un .....

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ant one. The seizure revealed that the central excise duty had been evaded and to the tune of ₹ 15,54,000/-. That is how the department/revenue issued show cause notice dated 20 July 2000 by which the duty and interest was demanded. The appellant was called to show cause as to why penalty should not be imposed. A reply was given to the show cause notice and thereafter the adjudicating authority passed an order dated 28 February 2011. The demand came to be confirmed. The Director was aggrie .....

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ed would visit him with a dismissal of the appeal without adjudication on merits. The condition to deposit the money as also other conditions imposed at the stage of stay by the tribunal were never questioned by the assessee. Since the assessee did not comply with the conditions, the appeal was dismissed for non-prosecution. The appellant-asseessee applied for restoration of the appeal and by making an application to the tribunal. The tribunal found on such an application that the appellant has .....

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the tribunal was approached by the appellant-assessee by filing Misc. Application which reads as under: "BEFORE THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WESTERN ZONAL BENCH, JAI CENTRE,P.D.D'MELLO ROAD, POONA STREET, MASJID (EAST) MUMBAI-400009 MISCELLANEOUS APPLICATION NO. OF 2013 MISCELLANEOUS APPLICATION FOR RESTORATION OF APPEAL ARISING OUT OF CESTAT ORDER NOS/1120.1121/12/FB/C11// 504/12/FB/C11 DATED 16.5.2012. Rajesh Arora Director M/s Raviraj Processors Pvt.Ltd Bad .....

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e Applicant. It is to be noted that in earlier proceedings, the Hon'ble Tribunal after seeing their law abiding attitude permitted them to rent out their property and deposit entire rent with Department till ₹ 15,00,000/- is paid. The Applicant submits that they are in a position to engage an Advocate or legal Consultant. The order of Hon'ble Tribunal is attached herewith. 3. The Applicant respectfully submits that the dismissal order has been passed not on merits but for non appea .....

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rsonal hearing before disposal of this application. S/d (Signature of the Applicant) VERIFICATION I, Rajesh Arora the Applicant do hereby declare that what is stated herein above is true and correct to the best of my information and belief. Verified today the 28th day of FEB 2013. S/d (Signature of the Applicant) 7. The appellant-assessee invoked the inherent powers of the tribunal to restore the appeal. However, on such an application the tribunal observed that the appellant has neither complie .....

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e Act, 1944. However, when the order was passed on 20 July 1999 refixing the annual capacity of production and duty liability, the appellant before the Hon'ble Supreme Court aggrieved by it approached the tribunal. The tribunal passed an order dated 18th January 2002 remanding the case back to the Commissioner of Central Excise and Customs with a direction to determine the capacity of production in accordance with law. The Commissioner once again passed the same order as was passed earlier a .....

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of 2013. That came to be dismissed by holding that there is no substantial question of law raised therein. It is in these circumstances that the Hon'ble Supreme Court analysed the tribunal's powers conferred by section 35C of the Central Excise Act, 1944. Section 35C of the Central Excise Act, 1944 reads as under: "The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annu .....

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sons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. The Appellate Tribunal may, at (2) 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 subsection (1) and shall make such amendments if the mistake is brought to its notice by the [Commissioner of Central Excise or the other party to the appeal: Provi .....

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: Provided that where an order of stay is made in any proceeding relating to an appeal filed under subsection (1) of section 35B, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order: Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated. The Appellate Tribunal shall send a (3) copy of every order passed und .....

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earing. The Hon'ble Supreme Court of India in paragraph nos. 11, 12 and 13 of its judgment held as under: 11. "From a perusal of the aforesaid provisions, we find that the Act enjoins upon the Tribunal to pass order on the appeal confirming, modifying or annuling the decision or order appealed against or may remand the matter. It does not give any power to the tribunal to dismiss the appeal for default or for want of prosecution in case the appellant is not present when the appeal is ta .....

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ules, 1946 are reproduced below: "Section 33(4) of the Income Tax Act, 1922 "33(4). The Appellate Tribunal may, after giving both parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, and shall communicate 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 wh .....

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go into the correctness or otherwise of the points decided by the departmental authorities in the light of the submissions made by the appellant. This can only be done by giving a decision on the merits on questions of fact and law and not by merely disposing of the appeal on the ground that the party concerned has failed to appear. As observed in Hukumchand Mills Ltd. v. CIT, the word "thereon" in Section 33(4) restricts the jurisdiction of the Tribunal to the subjectmatter of the app .....

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t without making any order thereon in accordance with Section 33(4). The position becomes quite simple when it is remembered that the assessee or the CIT, if aggrieved by the orders of the Appellate Tribunal, can have resort only to the provisions of Section 66. So far as the questions of fact are concerned the decision of the Tribunal is final and reference can be sought to the High Court only on questions of law. The High Court exercises purely advisory jurisdiction and has no appellate or rev .....

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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 Special Bench, in the present case, while examining this aspect quite appositely referred to the observations of Venkatarama Aiyar, J. in CIT v. Scindia Steam Navigation Co. Ltd. indicating the necessity of th .....

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the Appellate Tribunal has to dispose of the appeal on the merits and cannot shortcircuit the same by dismissing it for default of appearance." 13) Applying the principles laid down in the aforesaid case to the facts of the present case, 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 w .....

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dismiss the appeal for want of prosecution. We are inclined to apply the law laid down by the Hon'ble Supreme Court of India to the present case as well. However, we find that no litigant much less placed on par with the appellant before us has the absolute right to insist on the appeal being heard even when he does not comply with the conditions imposed on him while granting him discretionary and equitable relief of interim stay of recovery of taxes. The conditions that have been imposed b .....

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for decision on merits by the tribunal. However, the appellant-assessee cannot insist on non-compliance with the conditions imposed by the tribunal. Having not complied with the conditions and thereafter inviting dismissal of his appeal, the appellant-assessee cannot insist on an unconditional adjudication of his appeal on merits. That would be putting a premium on his negligent and intentional act. The order that we propose to pass, therefore does not run counter to the law laid down by the Ho .....

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