TaxTMI 
TaxTMI 
2018 (12) TMI 33
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....x-parte Stay order No. SO/58800-58802/2013 dated 05.08.2013 wherein the appellant was asked to deposit entire duty and penalty confirmed by the adjudication order within 60 days of the receipt of the order. The appellant was required to report compliance by 21.10.2013. The matter had come up for hearing again on 13.2.2014 wherein the learned advocate for the appellant made a request that since he was busy in a hearing before Allahabad High Court, and thus an adjournment was requested in the matter. However, again the ex-parte order was passed by this Tribunal wherein the stay and appeal as mentioned above were dismissed by this Tribunal vide Final Order dated 23.5.2014. The appellants have again filed restoration application in the matter w....
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....e matter need to be decided on merit. 3. We have also heard learned DR who has vehemently opposed the restoration application. 4. Having heard both sides, we feel that on the earlier occasions, this Tribunal after hearing learned advocate in detail has asked them to make mandatory pre-deposit under section 129E of the Customs Act, 1962 thus modifying the earlier ex-parte order of this Tribunal dated 05/08/2013. The compliance of the same has been reported by the learned advocate. 5. We feel that on the earlier occasions, the order passed by the Tribunal are without hearing the appellant, and therefore, dismissing the appeals without hearing the appellants and without discussing the merits of the case will not be in the interest of impart....
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....nicate any such orders to the assessee and to the Commissioner." Rule 24 of the Appellate Tribunal Rules, 1946 "24. Where on the day fixed for hearing or any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Tribunal may dismiss the appeal for default or may hear it ex parte." Considering the aforesaid provisions, this Court held as under :- "7. The scheme of the provisions of the Act relating to the Appellate Tribunal apparently is that it has to dispose of an appeal by making such orders as it thinks fit on the merits. It follows from the language of Section 33(4) and in particular the use of the word "thereon" that the Tribunal has to go into the correctne....
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....n 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 as well as law which can only be done if the appeal is disposed of on the merits and not dismissed owing to the absence of the appellant. It was laid down as far back as the year 1953 by S.R. Das, J. (as he then was) in CIT, v. Mtt. Ar. S. Ar. Arunachalam Chettiar that the jurisdiction of the Tribunal and of the High Court is conditional on there being an order by the Appellate Tribunal which may be said to be one under Section 33(4) and a question of law arising out of such an order. The....