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2016 (2) TMI 439 - CESTAT CHENNAI

2016 (2) TMI 439 - CESTAT CHENNAI - TMI - Restoration of appeal - appeals were dismissed for non-prosecution - Advocate submits that there was representation for adjournment on 16.12.2014. On that day Junior counsel attached to their office seek adjournment on the ground that the counsel on record had on a pilgrimage to Sabarimala. He further submits that the non-appearance on that date was neither wilful nor wanton and pleads for restoration of their appeals - Held that:- Apex Court has said th .....

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upal, AC (AR) ORDER PER: P.K. CHOUDHARY The applicants filed these applications for restoration of their appeals. Vide Final Order Nos. 40982-40983/2014 dated 16.12.2014, both the appeals were dismissed for non-prosecution. 2. The Ld. Advocate submits that there was representation for adjournment on 16.12.2014. On that day Junior counsel attached to their office seek adjournment on the ground that the counsel on record had on a pilgrimage to Sabarimala. He further submits that the non-appearance .....

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law relied on by the Ld. Counsel, we find that the Hon ble Supreme Court in the case of Balaji Steel Re-rolling Mills (supra) has held that CESTAT could not dismiss the appeal for absence of the appellant but to decide the appeal on merits by relying on Rule 20 of CESTAT (Procedure) Rules, 1982. The relevant portion of the said order is reproduced as under:- 12. A similar question came up for consideration before this Court in The Commissioner of Income-Tax, Madras v. S. Chenniappa Mudaliar, Ma .....

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pportunity 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 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 :- .....

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rits 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 n Section 33(4) restricts the jurisdiction of the Tribunal to the subject-matter of the appeal and the words pass such orders as the Tribunal thinks fit include all the powers (except possibly the power of enhancement) which are conferred upon the Appellate Assistant Commissioner by Section 31 of the .....

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rt 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 revisional powers. The advisory jurisdiction 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 .....

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