TMI Blog2019 (3) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the appellant is not present when the appeal is taken up for hearing. The Hon'ble Supreme Court in various cases while considering Section 35-C (1) of the Central Excise and Salt Act, 1944, which deals with the orders of the appellate Tribunal r/w. Rule 20 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982, has held that the Central Excise Act, 1944, does not give 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. The first respondent Tribunal could not have dismissed the appeal filed by the petitioner for want of prosecution and it ought to have decided the appeal on merits even if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the levy of service tax of ₹ 41,80,924/- including the service tax and cess from the period 2006-2007 to 2010-2011 under the provisions of the Finance Act, 1994. 5.It is the case of the petitioner that the works contract services done by the petitioner for BHEL for the period from 2006-2007 to 26.07.2009 is exempted. According to the petitioner, service tax is attracted only for the period from 27.07.2009 to 31.12.2010 at the rate of 33%, as per the notification No.1/2006, service tax dated 01.03.2015. 6.According to the petitioner, the second respondent despite the exemption, levied the service tax on the petitioner for the entire payment received by the petitioner from M/s.BHEL from 2006-2007 to 31.12.2010. The petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1994, by the first respondent, it is not an order passed on merits. Admittedly, the order has been passed in the absence of the petitioner or his Counsel. 11.Section 86(7) of the Finance Act, 1994, reads as follows: 86(7). Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the Appellate Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeals and making orders under the Central Excise and Salt Act, 1944. 12.Therefore, it is clear that while hearing appeals and making orders, the Appellate Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeals and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for his non-appearance when the appeal was called on for hearing, the Tribunal shall make an order setting aside the dismissal and restore the appeal. 15.From a perusal of the aforesaid provisions, we find that the Finance Act, 1994, enjoins upon the Tribunal to pass order in the appeal confirming, modifying or annulling the decision or order appealed against or 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 up for hearing. 16.The Hon'ble Supreme Court, while considering Section 35-C (1) of the Central Excise and Salt Act, 1944, which deals with the orders of the appellate Tribunal r/w. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows: 12. Considering the aforesaid provisions, this Court held as under: (S.Chenniappa Mudaliar case, SCC pp. 595-96, para 7) 7. The scheme of the provisions of the Act relating to the Appellate Tribunal apparently is that it has to dispose of an appeal by making such orders as it thinks fit on the merits. It follows from the language of Section 33(4) and in particular the use of the word 'thereon' that the Tribunal has to go into the correctness or otherwise of the points decided by the departmental authorities 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on questions of fact as well as law which can only be done if the appeal is disposed of on the merits and not dismissed owing to the absence of the appellant. It was laid down as far back as the year 1953 by S.R. Das, J. (as he then was) in CIT v. Arunachalam Chettiar that the jurisdiction of the Tribunal and of the High Court is conditional on there being an order by the Appellate Tribunal which may be said to be one under Section 33(4) and a question of law arising out of such an order. The Special Bench, in the present case, while examining this aspect quite appositely referred to the observations of Venkatarama Aiyar, J. in CIT v. Scindia Steam Navigation Co. Ltd. indicating the necessity of the disposal of the appeal on the merits by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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