(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA) By this Application under Article 227 of the Constitution of India, the writ-petitioner, appellant before the Customs, Excise and Service Tax Tribunal, West Zonal Bench, Ahmedabad, has challenged the order dated 15th November 2011 passed by the Tribunal, by which the said Tribunal dismissed the appeal preferred under Section 35E of the Central Excise Act for default due to non-appearance of anybody on behalf of the present petitioner who is appellant before the Tribunal.
The only question involved in this Application is, whether the Tribunal was competent to dismiss the appeal for default without entering into the merit.
In view of the Division Bench decision of this Court in the case of Kiran Ship Breaking Corporation v/s. Customs, Excise and Service Tax, reported in 2011 (269) ELT 491 (Gujarat), we find substance in the contention of Mr.Dave, learned advocate for the petitioner, that the order impugned cannot be supported.
As pointed out by the Division Bench in the aforesaid decision, the Tribunal has no power to dismiss the appeal for default but should enter into the merit even in case of non-appearance of the appellant before the Tribunal.
On the above ground alone, we set-aside the order passed by the Tribunal and restore the appeal. Since the appeal is pending for the last six years, we direct the Tribunal to dispose of the appeal positively within a month from today. Even if the petitioner is not present on the next date fixed, the Tribunal will dispose of the same on merit in accordance with law.
Although, the respondent prayed for variation of the interim relief, by which we restored the status quo which continued during the pendency of the appeal before the Tribunal, in view of our order that the Tribunal acted without jurisdiction, we do not find any reason to modify the earlier order which was subsisting during the pendency of the appeal before the Tribunal. Over and above, the Revenue did not challenge the interim order that was passed by the Tribunal during the pendency of the appeal.
The Special Civil Application is, thus, disposed of with the above directions. We make it clear that we have not otherwise gone into the merits.
The learned counsel for the parties agree that both the parties will approach the Tribunal on 10th April 2012 for fixing a date of hearing of the appeal.
Direct service is permitted.
(Bhaskar Bhattacharya, Acting C.J.) (J.B.Pardiwala, J.) /moin Top