2009 (9) TMI 177 - HC - Central Excise

Tribunal's Jurisdiction to Dismiss Appeal for Non-Prosecution Affirmed

CHEMIPOL Versus UNION OF INDIA

The Court upheld the view that the Tribunal has the jurisdiction and inherent power to dismiss an appeal for non-prosecution, emphasizing the need to ... Tribunal rejecting the application filed by the appellant for restoration of its appeal for non-prosecution. - In the present case, the Tribunal has dismissed the appeal on the absence of the appellant only on one occasion. The fact that the appellant immediately thereafter applied for restoration of the appeal shows his intention that he was interested in prosecuting the appeal and may be he had a justifiable cause for his absence on one occasion. In the circumstances, the Tribunal ought to have restored the appeal to the file. - Revenue then submitted that the impugned order arises out of a second application for restoration of the appeal filed by the petitioners. Second application for restoration was not maintainable as the first application was dismissed. As we have held that initial order of dismissal itself was without jurisdiction as the appeal was dismissed for default without there being a power, the fact of dismissal of the first application would not come in the way of the petitioner. The Tribunal ought to have corrected its mistake on being brought to its notice that petitioner was interested in prosecuting the appeal and as such the Tribunal had no power to dismiss the appeal for default. In the light of that, Tribunal ought not to have dismissed the second application on a technical ground. For these reasons, the petition is allowed and the matter is restored to file of the Tribunal. The Tribunal shall hear the appeal on merits after notice to the petitioner. Issues:1. Jurisdiction of the Tribunal to dismiss an appeal for non-prosecution.2. Applicability of inherent power to dismiss a proceeding for non-prosecution.3. Consideration of circumstances for dismissing an appeal for non-prosecution.4. Maintaining jurisdiction over an appeal in case of absence of the appellant.5. Validity of a second application for restoration of an appeal.Issue 1: Jurisdiction of the Tribunal to dismiss an appeal for non-prosecution:The appellant challenged the dismissal of their appeal by the Tribunal for non-prosecution. The appellant contended that under the Central Excise Act, the Tribunal lacks the power to dismiss an appeal due to the absence of the appellant. The appellant cited decisions from the Gujarat and Delhi High Courts supporting the requirement for deciding appeals on merits even in the appellant's absence. However, the Revenue's counsel argued that the Tribunal's time should not be wasted on appeals where the appellant is absent, as it may lead to erroneous decisions and delay in hearing other pending appeals. The Court acknowledged the arguments but upheld the view of the Gujarat and Delhi High Courts, emphasizing the Tribunal's inherent power to dismiss an appeal for non-prosecution.Issue 2: Applicability of inherent power to dismiss a proceeding for non-prosecution:The Court referred to previous judgments highlighting the inherent power of every court or tribunal to dismiss a case in default when a party fails to appear. The Supreme Court's approval of this principle was noted, emphasizing that a court is not obligated to pursue a matter in the absence of the party who initiated the proceedings. The Court stressed that this power must be exercised judiciously, considering the circumstances of each case. It was clarified that unless a statute explicitly mandates hearing and deciding an appeal, a tribunal can dismiss it for non-prosecution.Issue 3: Consideration of circumstances for dismissing an appeal for non-prosecution:The Court emphasized the need for a tribunal to assess the appellant's interest in prosecuting an appeal before dismissing it for non-prosecution. It was highlighted that the decision should not be solely based on the appellant's absence on a single occasion. In the case at hand, the appellant promptly applied for restoration of the appeal after the initial dismissal, indicating their intention to pursue the matter. The Court held that the Tribunal should have restored the appeal considering the circumstances and the appellant's actions.Issue 4: Maintaining jurisdiction over an appeal in case of absence of the appellant:The Court discussed the challenges faced by appellants who are geographically distant from the Tribunal's location, making physical attendance at hearings costly and difficult. In such cases, if an appellant submits written submissions, the Tribunal must decide the appeal on merits based on those submissions. However, persistent absence without justifiable reasons may lead the Tribunal to dismiss the appeal for non-prosecution. The Court emphasized that the decision to dismiss should be based on the facts of each case and not merely on the appellant's absence on a single occasion.Issue 5: Validity of a second application for restoration of an appeal:The Revenue contended that a second application for restoration of the appeal was not maintainable after the first application was dismissed. However, the Court held that since the initial dismissal itself was without jurisdiction, the subsequent dismissal of the first application did not bar the appellant from seeking restoration. The Court directed the Tribunal to hear the appeal on merits after allowing the petition and restoring the matter to the Tribunal's file.This detailed analysis of the judgment from the Bombay High Court covers the various issues involved, including the jurisdiction of the Tribunal, the application of inherent powers, considerations for dismissing appeals, maintaining jurisdiction in the absence of the appellant, and the validity of subsequent restoration applications.