2009 (9) TMI 177

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....g  No. E/2822/98-Mum challenging the order in original dated 30th April 1998 passed by the Commissioner of Central Excise (Appeals). The appeal was posted for hearing on 25th May 2005. As the appellant was absent, the Tribunal dismissed the appeal. Application filed by the applicant for setting aside the order of dismissal for non-prosecution was rejected by the Tribunal. Hence the appeal. 3. Learned counsel for the appellant submitted that under the Central Excise Act, 1944 (for short "the Act") the Tribunal has no power to dismiss an  appeal for default in appearance of an appellant. Even if the appellant is absent, the Tribunal is required to decide the appeal on merits. In support, learned counsel referred to and relied upon ....

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....missions of Mr. Jetly we are not inclined to depart from the view taken by the two High Courts. No other High Court has taken a different view. Secondly, the Gujarat High Court, for striking down Rule 20 of the Rules, has relied upon a decision of the Supreme Court in Commissioner of Income Tax v. S. Cheniappa Mudaliar, AIR 1969 SC 1068, wherein the Supreme Court struck down Rule 34 of the Income Tax (Appellate Tribunal) Rules, 1946 which was similar to Rule 20 of the Rules. 5. We would however refer to the observations of Hidayatullah, Chief Justice (as His Lordship then was) in Sunderlal Mannalal v. Nandramdas Dwarkadas AIR 1958 MP 260 wherein it was observed:- "Now the Act does not give any power of dismissal. But it is axiomatic that ....

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.... of the rule that every court or tribunal has an inherent power to dismiss a proceeding for non prosecution when the petitioner/appellant before it does not wish to prosecute the proceeding. In such a situation, unless the statute clearly requires the court or tribunal to hear the appeal/proceeding and decide it on merits it can dismiss the appeal/proceeding for. Of course, the power must be exercised judiciously and taking into consideration all the facts and circumstances of the case. The Tribunal presently has its benches only at four or five places in India. An appellant who on account of his place or residence or business being far away from the place of sitting for the Tribunal may not except at a high cost be able to attend the heari....