TaxTMI 
TaxTMI 
2019 (1) TMI 372
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....estoration of their appeal which was dismissed 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 cor....
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....A No.2055 of 2018 dated 19.09.2018. In the said case also the Tribunal dismissed 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 t....
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....estion of law, which fell for consideration, was as to whether the Tribunal has the power to 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&....
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....aid company. However, it is not clear as to whether notice was served in the office of the Official Liquidator 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. ....