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2016 (1) TMI 522 - BOMBAY HIGH COURT

2016 (1) TMI 522 - BOMBAY HIGH COURT - 2015 (325) E.L.T. 719 (Bom.) - Restoration of appeal - Tribunal dismissed the appeal for want of prosecution - Held that: Central Excise Act, 1944, 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 taken for hearing. In the light of this clear pronouncement of law we cannot sustain the impugned order. The initial dismissal itself being contrary to law, .....

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ah with Jas Sanghvi i/b PDS Legal, for the Petitioner. Shri A.S. Rao, for the Respondent. ORDER P.C. : By this writ petition under Article 226 of the Constitution of India, the petitioner challenges the order passed by the Customs, Excise and Service Tax Appellate Tribunal (for short CESTAT ), West Zonal Bench, at Ahmedabad dated 7th April, 2014. 2. An application was made by the petitioner for restoration of appeal being Appeal No. E/2461/1999-DB. The restoration application is numbered E/ .....

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and a Provisional Liquidator came to be appointed. Annexure-D to this writ petition is a copy of the said order passed by this Court. The Court observed that the winding up order is required to be passed on the satisfaction reached by it. The order of winding up was in force from 22nd March, 2007, till 9th May, 2013. On 9th May, 2013, by an order passed on an application styled as an application for recalling the order of winding up and that of the appointment of the Official Liquidator, this C .....

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filed in this Court. Since that application had some bearing on the winding up of the petitioner and certain pending proceedings before the Board for Industrial and Financial Reconstruction that this adjournment was sought. 5. The petitioner eventually succeeded in pursuing this Court to set aside the winding up order. It was set aside as well. In these circumstances the petitioner could not remain present to argue the restoration application. The restoration application also has been dism .....

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hat the Tribunal was in no error in dismissing an appeal for want of any assistance by the petitioner simply because the petitioner wrote several letters and never showed any inclination to argue the restoration application. That is how Mr. Rao would support the reasoning of the Tribunal in paragraph 3 of the impugned order. 7. After having heard both sides and perusing with their assistance the petition paper-book so also the compilation of orders, we are of the clear view that the law doe .....

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Supreme Court has held that the Act viz. Central Excise Act, 1944, enjoins upon the Tribunal to pass an order on the appeal confirming, modifying or annulling the decision or order appealed against or it 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 taken for hearing. In the light of this clear pronouncement of law we cannot sustain the impugned order. The init .....

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