TMI Blog2018 (12) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... restored to their original number in the interest of justice and recovery against impugned order-in-original may be stayed till final disposal of appeal - the Restoration of Appeal Application is allowed with stay of recovery of duty and penalties imposed in the impugned order in original. - Customs ROA Application Nos. 50674 - 50676 of 2016, Customs Misc Application Nos. 51026 - 51028 of 2018, Customs Appeal No. 2654 – 2656 of 2012 - MO/50853-50858/2018-CU[DB] - Dated:- 28-11-2018 - Mr. C L Mahar, Member (Technical) And Ms. Rachna Gupta, Member (Judicial) Shri Navneet Panwar, Advocate for the Appellants Shri Sunil Kumar, AR for the Respondent ORDER Per C L Mahar: The facts in brief are that the above mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, these applications for Restoration of Appeals are dismissed. It is seen that the earlier also, the appeals were dismissed only for non-prosecution as notice of hearing could not be served on the appellants . 3. It has been contended by the learned Advocate that this Tribunal has dismissed their appeals for default in spite of the fact that the notices could not be served on the appellant and this fact has got a mention in the above-mentioned order. The learned Advocate relied upon the judgment of Hon ble Delhi High Court in the case of M/s Sai Shipping Services vs. Commissioner of Customs as well as Hon ble Supreme Court judgment in the case of M/s Balaji Steel Re-Rolling Mills 2014 (310) E.L.T. 209 (S.C.), wherein it has been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 up for hearing. 12. A similar question came up for consideration before this Court in The Commissioner of Income-Tax, Madras v. S. Chenniappa Mudaliar, Madurai - 1969 (1) SCC 591 wherein this Court considered the provisions of Section 33 of the Income-tax Act, 1922 and Rule 24 of the Appellate Tribunal Rules, 1946 which gave power to the Tribunal to dismiss the appeal for want of prosecution. For ready reference, Section 33(4) of the Income Tax Act, 1922 and Rule 24 of the Appellate Tribunal Rules, 1946 are reproduced below :- Section 33(4) of the Income Tax Act, 1922 33(4). The Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nhancement) 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 concerned the decision of the Tribunal is final and reference can be sought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus looking at the substantive provisions of the Act there is no escape from the conclusion that under Section 33(4) the Appellate Tribunal has to dispose of the appeal on the merits and cannot short-circuit 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 was not present when the appeal was taken up for hearing. The High Court also erred in law in upholding the order of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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