TaxTMI 
TaxTMI 
2019 (1) TMI 372
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....sed for non-prosecution vide order dated 20.06.2017. 2.Heard Mr.S.Baskaran, learned Counsel for the petitioner and Mr.K.S.Ramasamy, learned counsel accepts notice for the respondent. 3.The learned counsel for the respondent submitted that the appeal before this Court under Section 35G of the Central Excise Act, 1944 will not be maintainable, since it is arising out of a Miscellaneous Order. We do not accept the said contention because, even if an order has been passed in Miscellaneous Application, for example, in a case where there is a delay in filing the appeal which is dismissed, yet a Substantial Question of Law will arise. Therefore, this Court will be well justified in examining the correctness of the orders passed by the Tribunal, ....
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....ismissed the appeal for non-prosecution after taking note of the decisions of the Hon'ble Supreme Court. On the said issue the Court allowed the appeal filed by the assessee for better appreciation. The operative portion of the judgement is quoted herein "11. In the decision in Viral Laminates (P) Ltd., the challenge was to Rule 20 of the Customs, Excise and Gold (Control) Appellate Tribunal Rules, 1982, which enables the Tribunal to dismiss the appeal for default of appearance, as being ultra vires the provisions of Section 35C(1) of the Act and Section 129B(1) of the Customs Act, 1962. The Division Bench of the Gujarat High Court held that having regard to the scheme of the Act as well as the Customs Act, 1962, there was no manner o....
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....dismiss an appeal for want of prosecution or not. The Hon'ble Supreme Court took note of the decision in the case of CIT Vs. S.Chenniappa Mudaliar [reported in (1969) 1 SCC 591] wherein the Hon'ble Supreme Court considered the provisions of Section 33 of the Income Tax Act, 1922 and Rule 24 of the Income Tax Appellate Tribunal Rules, 1946, which gave power to the Tribunal to dismiss an appeal for want of prosecution. It was held that the Appellate Tribunal under the Income Tax Act has to dispose of the appeal on merits and cannot shortcircuit the same by dismissing it for default of appearance. Placing reliance on the said decision, the Hon'ble Supreme Court held that the provisions of Rule 20 of the 1982 Rules are similar to th....
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....dator nor there was any proof of service produced. In any event, the impugned order, being an order without jurisdiction, in the light of the decision of the Hon'ble Supreme Court in the decisions in Balaji Steel Re-Rolling Mills and S.Chenniappa Mudaliar, deserves to be set aside. 15. For the above reasons, the above civil miscellaneous appeal is allowed and the substantial question of law is answered in favour of the appellant. The impugned order dated 12.2.2018 is set aside and the matter is remanded to the Tribunal for a fresh consideration with a direction to restore the appeal filed by the appellant. No costs. 16. After further hearing the learned counsel for the parties, we are of the considered view that the dismissal of t....