TaxTMI 
TaxTMI 
2025 (6) TMI 1968
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....ppellant on several occasions. Thus, one of the reasons for dismissing the appeal was also for want of prosecution and necessary assistance which ought to have been provided by the Authorized Representative on behalf of the Applicant. (b) This Tribunal proceeded to decide the appeal on the limited material available on the records before this Tribunal. Admittedly the Authorized Representative on behalf the appellant did not enter his presence on various occasions, thereby did not defending the case of the appellant/applicant in the manner prescribed. There are several vital facts and submissions which were required to be placed before this Tribunal on behalf of the applicant which cannot be placed before this Tribunal prior to the passing of the order dated 04.03.2025. 2.1. Learned counsel has further submitted that the instant appeal was dismissed as ex-parte by this Tribunal vide order dated 04.03.2025, because the Authorized Representative, i.e., CA Shri Neeraj Agrawal, of the appellant could not appear before the Tribunal on the schedule date and the appellant had tried to communicate with the then Authorized Representative to ascertain the case status. However, the appel....
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.... Pradesh seeking exception to the requirement of pre-deposit as contained in Section 35F of the Central Excise Act, applicable to Finance Act, 1994. The Hon'ble High Court vide its order dated 30.05.2024 directed the appellant to fulfil the requirement of pre-deposit within 60 days and CESTAT was directed to decide the appeal within a further period of 120 days. We note that the Registry vide its note dated 09.07.2024 stated that the instant Appeal ST/54991/2023 was filed on 05.06.2023, and on perusal of the records had noted that the appellant had already paid an amount more than the pre-deposit. Hence, no defect memo had been issued by the Central Registry of CESTAT. Vide the order dated 19.08.2024, the Bench had noted the aforesaid facts and also noted that the High Court order does not note that the pre-deposit had already been made. Hence, the time limit of 120 days was taken note for fixing the next date as last opportunity on 20.09.2024. The details of the hearings fixed by the Tribunal is as under: S. No. From date Subject To date 1 09.08.2024 None appeared for appellants Notice to be sent to the appellant by speed post/e-mail to inform the next date....
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....m Lumbar Spondylitis and was advised three months bed rest from 24.6.2024. Hence, the bedrest advised for three months by the Doctor was over on 23.09.2024, whereas it is seen that the case was posted for hearing on 27.09.2024, 09.10.2024, 28.10.2024 and finally on 05.11.2024. Hence, we are unable to accept that the Director could not appear on any of the dates post the bed rest period. Restoration of Appeal (ROA) is not a matter of right of the appellant. It is not to be permitted in routine manner, and is permitted only in exceptional cases where it is inevitable and there are valid reasons for restoring the appeal. In the instant application, the appellant has failed to submit any valid reasons for failing to appear as and when the case was posted for hearing. Adjournments can be sought, but for valid reasons only. However, no valid or justifiable reason has been submitted by the Ld Counsel for failing to appear on the seven opportunities offered to the appellant by this Tribunal. Further, we note that Rule 20 of the CESTAT (Procedure) Rules, 1982 prescribes as follows:- "Rule 20. Action on appellant's default.-Where on the day fixed for the hearing of the appeal or on ....
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....ich 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 correctness or otherwise of the points decided by the departmental authorities in the light of the submissions made by the appellant. This can only be done by giving a decision on the merits on questions of fact and law and not by merely disposing of the appeal on the ground that the party concerned has failed to appear. As observed in Hukumchand Mills Ltd. v. CIT, the word "thereon" in Section 33(4) restricts the jurisdiction of the Tribunal to the subjectmatter of the appeal and the words "pass such orders as the Tribunal thinks fit" include all the powers (except possibly the power of enhancement) which are conferred upon ....
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....peal on the merits and cannot short-circuit the same by dismissing it for default of appearance." 13) Applying the principles laid down in the aforesaid case to the facts of the present case, as the two provisions are similar, we are of the considered opinion that the Tribunal could not have dismissed the appeal filed by the appellant for want of prosecution and it ought to have decided the appeal on merits even if the appellant or its counsel was not present when the appeal was taken up for hearing. The High Court also erred in law in upholding the order of the Tribunal. 14) We, therefore, set aside the order dated 18.01.2014 passed by the High Court of Judicature of Bombay, Bench at Aurangabad and also the order dated 22.08.2012 passed by the Tribunal and direct the Tribunal to decide the appeal on merits." 8. We note that the aforesaid three Judge Bench judgment of the Supreme Court was passed in the year 2014, whereas the case laws relied upon by the appellant viz., Rafiq and Another vs Munshilal and Another [1981 (4) TMI 255 SC] and J.K. Synthetics vs Collector of Central Excise [1996 (8) TMI 110 SC] was passed much earlier than this decision of the Hon'bl....