TMI Blog2019 (11) TMI 1523X X X X Extracts X X X X X X X X Extracts X X X X ..... ch other order as it thinks proper in the circumstances of the case. There is nothing in the Rule which provides that when the appellant does not appear and the respondent appears, the appeal shall be disposed of ex parte. If that were the intention of the Legislature, a clear mandate to the said effect would have been incorporated in the Rule. The intent of the Legislature in enacting this provision is that under Rule 17, the appeal should not be dismissed on merits in the absence of the appellant but it may be dismissed in default so that the appellant may avail of the remedy provided under Rule 19. Inasmuch as when an appeal is dismissed under Rule 17, the appellant is entitled to apply to the Appellate Court for re admission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Annexure A-1) passed by the Customs, Excise Service Tax Appellate Tribunal, New Delhi in Central Excise Appeal No. E/52633/2016-Ex(SM) whereby the appeal preferred by the appellant against an order dated 3-5-2016 passed by the Commissioner (Appeals), Central Excise, Bhopal has been dismissed. 2. The appellant has claimed the following questions of law :- (i) Whether the Learned Appellate Tribunal, while passing the impugned order has appreciated the merits of the case or not? It is now, a well-settled position of law that while considering the case for final hearing, the Appellate Tribunal must appreciate and consider the merits and the value of the cause involved in the matter and in the instant case the Appellate Tribunal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the appellant or its counsel, the Tribunal erred in adjudicating the appeal on merits. On these premises, the only substantial question which would arise for consideration at this stage in the appeal is :- Whether in the facts and circumstances of the case, the Tribunal was justified in adjudicating the appeal on merits in the absence of the counsel or the appellant before it? 3. Briefly stated, the facts of the case are that the appellant, a registered dealer of excisable goods and issuing invoices under Rule 11 of the Central Excise Rules, 2002, disputed the correctness of an order dated 26-2-2014 issued by the Assistant Commissioner (CCE ST), Bhopal imposing penalty under Section 11AC of the Act before the Commissioner (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance upon the Supreme Court decision in Thakur Sukhpal Singh v. Thakur Kalyan Singh (AIR 1963 S.C. 146) to contend that while a litigant cannot just raise objections in his memorandum of appeal and leave it to the Appellate Court to give its decision on those points after going through the record and determining the correctness thereof but at the same time, it is also the duty of the Appellate Court to hear the litigant in support of the appeal. 5. The question which has emerged for consideration is : whether the Tribunal was justified in adjudicating the appeal on merits in the absence of the counsel or the appellant on the date of hearing. In this context, it would be apt to take note of Order XLI, Rule 17 of the Code of Civil Procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. At this stage, it would be expedient to refer to Rule 19 of the Order XLI of the Code for effective adjudication. The said provision is in the following terms :- 19. Re-admission of appeal dismissed for default. - Where an appeal is dismissed under rule 11, sub-rule (2) or rule 17, the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit. Thus, the view expressed in the preceding paragraph finds support from the aforesaid provision. Inasmuch as wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 723 wherein the Court held that in terms of sub-rule (1) of Rule 17, Order XLI of the Code, if the appellant does not appear, the appeal shall be dismissed for default without going into merits. 9. Regard being had to the aforesaid provision and the decision of the Supreme Court, in the present case, the order impugned, on the face of it, is contrary to the judgment of the Supreme Court in Harbans Pershad Jaiswal s case (supra). It is noticed that the appellant did not appear on the date of hearing despite notice. However, once the Appellate Tribunal found that the show cause notice was issued proposing to impose penalty under Rule 15 of the Cenvat Credit Rules, 2004, whereas, the penalty under Section 11AC of the Act was attracted a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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