TMI Blog2019 (1) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal for consideration of the appeal on merits. - Civil Miscellaneous Appeal No.2882 of 2018 - - - Dated:- 10-12-2018 - Mr. Justice T.S. Sivagnanam And Mr. Justice N. Sathish Kumar For the Appellant : Mr.S.Baskaran For the Respondent : Mr.K.S.Ramasamy JUDGMENT T.S.SIVAGNANAM, J. This Civil Miscellaneous Appeal is filed under Section 35G of the Central Excise Act, 1944 directed against the order passed by the Central Excise and Service Tax Appellate Tribunal, dated 30.05.2018 rejecting the assessee's application seeking restoration of their appeal which was dismissed for non-prosecution vide order dated 20.06.2017. 2. Heard Mr.S.Baskaran, learned Counsel for the petitioner and Mr.K.S.Ramasamy, learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )Whether the Tribunal was right in dismissing the appeal of the appellant for nonprosecution without considering the provisions of Section 35C of the Central Excise Act, which do not grant/provide powers to the Tribunal to dismiss any appeals for default or for want of prosecution, even in a case where the appellant nor his counsel not present during the course of hearing? 5.Identical issue was considered by the Hon'ble Division Bench of this Court in the case of P.Ganesh, Commercial Director Vs. The Commissioner of Central Excise in CMA No.2055 of 2018 dated 19.09.2018. In the said case also the Tribunal dismissed the appeal for non-prosecution after taking note of the decisions of the Hon'ble Supreme Court. On the said issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was further held that that part of Rule 20 of the relevant Rules, which enables the Appellate Tribunal to dismiss an appeal for default of appearance as well as the Proviso to Rule 20 of the relevant Rules, are ultra vires the provisions of Section 35C(1) of the Act as well as 129B of the Customs Act, 1962. It was also held that the Appellate Tribunal has no power to dismiss the appeal for non appearance of the appellant and that the appeal should be decided on merits. 12. In the decision in Balaji Steel Re-Rolling Mills, the question of law, which fell for consideration, was as to whether the Tribunal has the power to dismiss an appeal for want of prosecution or not. The Hon'ble Supreme Court took note of the decision in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal failed to note, is that the non appearance of the appellant was only on one hearing i.e 02.8.2017. On the previous hearings, it was reported that the said company, which was also one of the appellants, was wound up pursuant to the orders passed by the Company Court and the Official Liquidator was appointed as the Provisional Liquidator. Therefore, the appropriate procedure would have been to issue notice to the Official Liquidator because he is, in fact, an officer of the Company Court and he has to administer the estate of the said company. However, it is not clear as to whether notice was served in the office of the Official Liquidator nor there was any proof of service produced. In any event, the impugned order, being an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt took into consideration the decision of the Hon'ble Supreme Court in the case of Balaji Steel Re-rolling Mills Vs. Commissioner of Central Excise and Customs, and held as follows: 7........ The Hon'ble Supreme Court has clarified that once there is no power in the Tribunal to dismiss an appeal for want of prosecution then, the orders of this nature cannot be sustained. The Hon'ble 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 of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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