TaxTMI 
TaxTMI 
2015 (7) TMI 385
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....the appellant did not comply with the condition and the appeal was dismissed by virtue of the selfoperative order passed at the stage of grant of stay, still the tribunal should have heard the appeal on merits. That is a right vested in the assessee. In support of these submissions, reliance is placed on a recent judgment of the Hon'ble Supreme Court of India in the case of BALAJI STEEL REROLLING MILLS VS.COMMISSIONER OF C.EXCISE AND CUSTOMS in Civil Appeal No.10265 of 2014 decided on 14th November 2014 which is reported in 2014 (310) E.L.T. 209 (S.C.). 3. On the other hand, Mr.A.S.Rao learned counsel appearing on behalf of the revenue would submit that the facts and circumstances in the present case are gross. They would reveal deliberate inaction and utter negligence on the part of the assessee. The assessee was not prevented from exercising the right of appeal conferred by the statute. The assessee does not dispute that the assessee invoked the power of the Appellate Authority to grant waiver of the condition of predeposit of taxes and stay of recovery of taxes pending disposal of the appeal. The assessee does not dispute that the Authority could have imposed conditions whi....
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....l, West Zonal Bench, Mumbai. The appellant does not dispute that the tribunal entertained the application for stay before it and passed a conditional order thereon. The appellant was made aware of the fact that non-compliance with the conditions imposed would visit him with a dismissal of the appeal without adjudication on merits. The condition to deposit the money as also other conditions imposed at the stage of stay by the tribunal were never questioned by the assessee. Since the assessee did not comply with the conditions, the appeal was dismissed for non-prosecution. The appellant-asseessee applied for restoration of the appeal and by making an application to the tribunal. The tribunal found on such an application that the appellant has not revealed complete and proper facts. The tribunal found that despite such non-compliance by the appellant-assessee of these conditions, the appeals were taken up for adjudication on 16 May 2012. Thus the appeals bearing No.E/213/12MUM and E/214/12/12MUM were taken up for adjudication but since the appellant remained absent despite notice, the tribunal dismissed the appeal for non-prosecution. Thus, the stay application as also the appeal was ....
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....see invoked the inherent powers of the tribunal to restore the appeal. However, on such an application the tribunal observed that the appellant has neither complied with the conditions imposed while granting stay nor has he appeared and argued the appeal on earlier occasions. In such circumstances, this is not a fit case for exercise of the discretionary powers and proceed on these lines. It has dismissed the restoration application by the impugned order. 8. We find that the Hon'ble Supreme Court of India was dealing with the situation where the appellantasseesee before it a partnership firm was subjected to certain proceedings under the Central Excise Act, 1944. However, when the order was passed on 20 July 1999 refixing the annual capacity of production and duty liability, the appellant before the Hon'ble Supreme Court aggrieved by it approached the tribunal. The tribunal passed an order dated 18th January 2002 remanding the case back to the Commissioner of Central Excise and Customs with a direction to determine the capacity of production in accordance with law. The Commissioner once again passed the same order as was passed earlier and which was challenged by the appel....
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....riod of three years from the date on which such appeal is filed: Provided that where an order of stay is made in any proceeding relating to an appeal filed under subsection (1) of section 35B, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order: Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated. The Appellate Tribunal shall send a (3) copy of every order passed under this section to the Commissioner of Central Excise and the other party to the appeal. Save as provided in section 35G or (4) section 35L, orders passed by the Appellate Tribunal on appeal shall be final." 9. Upon perusal of the said provision, together with its subsections, the Hon'ble Supreme Court of India held that the tribunal does not have any power 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 Hon'ble Supreme Court of India in paragraph nos. 11, 12 and 13 of its judgment held as under: 11. "From a perusal of the....
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.... (except possibly the power of enhancement) which are conferred upon the Appellate Assistant Commissioner by Section 31 of the Act. The provisions contained in Section 66 about making a reference on questions of law to the High Court will be rendered nugatory if any such power is attributed to the Appellate Tribunal by which it can dismiss an appeal, which has otherwise been properly filed, for default without making any order thereon in accordance with Section 33(4). The position becomes quite simple when it is remembered that the assessee or the CIT, if aggrieved by the orders of the Appellate Tribunal, can have resort only to the provisions of Section 66. So far as the questions of fact are concerned the decision of the Tribunal is final and reference can be sought to the High Court only on questions of law. The High Court exercises purely advisory jurisdiction and has no appellate or revisional powers. The advisory jurisdiction can be exercised on a proper reference being made and that cannot be done unless the Tribunal itself has passed proper order under Section 33(4). It follows from all this that the Appellate Tribunal is bound to give a proper decision on questions of fact....
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.... par with the appellant before us has the absolute right to insist on the appeal being heard even when he does not comply with the conditions imposed on him while granting him discretionary and equitable relief of interim stay of recovery of taxes. The conditions that have been imposed by the tribunal while granting such a discretionary and equitable relief have never been questioned by the appellant and rather he has accepted the same. He therefore, cannot be permitted to wriggle out of the same and by relying on the present state of law as emerging from the judgment of the Hon'ble Supreme Court of India. We therefore, made it clear to Mr.Dhopatkar learned counsel for the appellant that we are inclined to set aside the impugned order of the tribunal and restore the appeals for decision on merits by the tribunal. However, the appellant-assessee cannot insist on non-compliance with the conditions imposed by the tribunal. Having not complied with the conditions and thereafter inviting dismissal of his appeal, the appellant-assessee cannot insist on an unconditional adjudication of his appeal on merits. That would be putting a premium on his negligent and intentional act. The orde....