TMI Blog2018 (3) TMI 1397X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of Section 129B would denote that the Tribunal can postpone or adjourn the hearing so as to accommodate party who seeks a personal hearing but, in no case, the Tribunal is empowered to dispose of the appeal without adjudication on merits merely because there is no compliance reported by the assessee with the terms and conditions imposed on it when the Tribunal considered a stay application or passed its order thereon. Thus, the Tribunal was not justified in dismissing the appeal - The Tribunal shall now adjudicate the Appeal on merits in accordance with law and as expeditiously as possible. Petition disposed off. - Customs Appeal No. 75 of 2016, With Writ Petition No. 2206 of 2017 - - - Dated:- 19-3-2018 - S.C. DHARMADHIKARI AND PRAKASH D. NAIK, JJ. Mr. Prakash Shah a/w. Mr. Jas Sanghvi i/b. PDS Legal, Advocate for the Appellant. Ms. P.S. Cardozo, Advocate for the Respondent. P.C. : In both these matters, the appellants-petitioners are aggrieved and dissatisfied with the order of the Tribunal, namely, Customs, Excise and Service Tax Appellate Tribunal. The order dated 14th March, 2016, issued on 21st March, 2016, reads as under: When this ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice dated 6th December, 2012, was issued, raising specific demands. An Order-in-Original was passed after the explanation, by way of reply to the show-cause notice, was not accepted. The Order-in-Original is dated 25th March, 2014. 5. Being aggrieved and dissatisfied with this order, the appellant filed an Appeal bearing No. C/87446 /2014, before the Tribunal, under Section 129A of the Customs Act, 1962. 6. Pertinently, Ms.Cardozo does not dispute that an application for stay was filed in this appeal and the Tribunal by following its earlier order has disposed of the stay application by a Speaking Order. The Speaking Order requires, according to Ms. Cardozo, the appellant to pay to the Revenue a sum stipulated in the said order. However, instead of complying with that order, the application for modification of that order was made. Though, the earlier order was passed in the presence of the appellant, the modification thereof was sought. The modification application was also dismissed on 10th March, 2015, holding that, the Tribunal has no such power, as is ordinarily conferred in a Civil Court, namely, review of its own orders. Hence, the Misc. Application seeking rectifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s be given an opportunity of being heard, but, the jurisdiction vesting in the Tribunal is an appellate jurisdiction. It enables it to pass such orders as it think fit, but, particularly confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority who passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. The various Sub-sections of Section 129B would denote that the Tribunal can postpone or adjourn the hearing so as to accommodate party who seeks a personal hearing but, in no case, the Tribunal is empowered to dispose of the appeal without adjudication on merits merely because there is no compliance reported by the assessee with the terms and conditions imposed on it when the Tribunal considered a stay application or passed its order thereon. In the instant case, the order was passed initially on the application for stay. That application for stay relied upon an order passed by the Tribunal in the case of one Gupta Coal India Pvt. Ltd. Vs The Commissioner of Customs (Preventive), Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court sitting at Aurangabad upheld that view of the Tribunal. Being aggrieved, the assessee approached the Supreme Court and the Supreme Court held as under: 9 Section 35C(1) of the Act which deals with the powers of the Tribunal reads as under:- 35C. Orders of Appellate Tribunal.-(1) 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 annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. 10 Rule 20 of the Rules which gives a power to the Tribunal to dismiss the appeal for default in case the appellant does not appear when the appeal is called on for hearing reads as under:- RULE 20. Action on appeal for appellant's default . - Where on the day fixed for the hearing of the appeal or on any other day to which such hearing may be adjourned, the appellant does not appear when the appeal is called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities 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 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 Act. The provisions contained in Section 66 about making a reference on questions of law to the High Court will be rendered nugatory if any such power is attributed to the Appellate Tribunal by which it can dismiss an appeal, which has otherwise been properly filed, for default 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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