Tribunal cannot dismiss appeal filed by assessee for want of prosecution

Central Excise : Tribunal cannot dismiss appeal filed by assessee for want of prosecution or for default; it ought to decide appeal on merits even if assessee or its counsel was not present when appeal was taken up for hearing
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[2014] 52 taxmann.com 107 (SC)
SUPREME COURT OF INDIA
Balaji Steel Re-rolling Mills
v.
Commissioner of Central Excise & Customs*
ANIL R. DAVE, KURIAN JOSEPH
AND R.K.AGRAWAL, JJ.
CIVIL APPEAL NO. 10265 OF 2014
NOVEMBER  14, 2014
Section 35C, read with section 35B of the Central Excise Act, 1944, rule 20 of the CESTAT (Procedure) Rules, 1982, section 86 of the Finance Act, 1994 and section 129B of the Customs Act, 1962 - Appeals - Powers of - Appellate Tribunal - On assessee's absence on date of hearing, Tribunal dismissed appeal for default/non-prosecution - Assessee argued that Tribunal does not have power to dismiss appeal for non-prosecution and it has to pass orders on merits - Revenue argued that rule 20 empowers Tribunal to dismiss appeal for non-prosecution - HELD : Act enjoins upon Tribunal to pass order on appeal confirming, modifying or annulling decision or order appealed against or may remand matter - It does not give any power to Tribunal to dismiss appeal for default or for want of prosecution in case assessee is not present when appeal is taken up for hearing - Hence, Tribunal could not have dismissed appeal filed by assessee for want of prosecution and it ought to have decided appeal on merits even if assessee or its counsel was not present when appeal was taken up for hearing - Matter was remanded back to Tribunal to decide appeal on merits [Paras 11 to 15] [In favour of assessee]