2015 (7) TMI 341

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....ed for want of prosecution on 13.9.2010. The Tribunal's order reads as under:- "The applicant filed this application for Restoration of Appeal. 2. Heard both sides. 3. The appeal filed by the applicant was dismissed by this Tribunal on 13.09.2010 for nonprosecution. It was observed by the Tribunal that the matter was listed for hearing on 9.7.2010. On the said day the learned Advocate appearing on behalf of the applicant sought adjournment. Therefore, the matter was posted for hearing on 09.08.2010. On 9.8.2010 none appeared on behalf of the applicant nor any request for adjournment has been received but again, in the interest of justice, this Tribunal adjourned the matter to 13.09.2010. On 13.9.2010 also none appeared for the ....

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.... in original was passed on 27.11.2008. Being aggrieved by it, the Commissioner (Appeals), Central Excise was approached and who on an application for stay/dispensation of the condition of predeposit, passed an order on 25.8.2009. He ordered deposit of 50% of the confirmed demand and penalty. This order was not complied with by the petitioner and therefore, the appeal before the Commissioner stood dismissed for non compliance of the condition. The petitioner, thereafter, approached the Tribunal against this order dated 6.10.2009 of the Commissioner of Central Excise (Appeals) and the appeal was posted on 9.8.2010 when the petitioner's Advocate was absent. The Tribunal as a matter of indulgence adjourned the appeal to 13.9.2010, but even ....

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....etion an appeal for default yet, construing its wording the Hon'ble Supreme Court holds that when the Act enjoins upon the Tribunal to pass order on the appeal confirming, modifying or annulling the decision or order appealed against or it may remand the matter, then, that power under the Section does not include dismissal of appeal for default or for want of prosecution. Therefore, the wording of section was held to be crucial for the purposes of rendering the decision on the issue or question before the Supreme Court. 6. Once the above judgment applies and the Tribunal has no power to dismiss the petitioner's appeal without adjudication on merits, then, it could have given an opportunity to the petitioner to argue its appeal an....