M/s Shri Ambika Ispat india Private Limited Now Keshav Sponge and Energy Private Ltd. V. The Commissioner Central Excise and Customs

TAXC/128/2017

AI Insights

The case involves M/s Shri Ambika Ispat (India) Private Limited, now Keshav Sponge & Energy Private Ltd., as the appellant, against the Commissioner Central Excise & Customs and the Customs, Excise & Service Tax Appellate Tribunal as respondents. The core issue was the dismissal of the appellant's appeal by the CESTAT due to the non-appearance of the appellant or its counsel. The High Court of Chhattisgarh, Bilaspur, after considering the precedents and procedural rules, found that the CESTAT erred in dismissing the appeal for default without deciding it on merits. The court referenced the Supreme Court's decision in Balaji Steel Re-Rolling Mills v. Commissioner of Central Excise and Customs, which held that an appeal under Section 35-C of the Central Excise Act cannot be dismissed for default.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 732629 (HC-CHHATTISGARH)
• Appeal Type: Others
• Pronouncement Date: 25-08-2017
• Assessment Year: misc
• Other Referred Cases: Commissioner of Income Tax v. S. Chenniappa Mudaliar, Balaji Steel Re-Rolling Mills v. Commissioner of Central Excise and Customs
• Laws Referred To: Central Excise Act, Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: VINAY PANDEY
• Assessee Lawyers: ASHISH SHRIVASTAVA; ANIMESH VERMA
• Keywords: CESTAT; Dismissal for Default; Restoration of appeal; Interlocutory relief
• Section: 35G; 35 C

Judgement Text

"1 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR TAX Case No. 128 of 2017 (Arising out of order No. A/ 50331/2017 dated 12.01.2017 in Excise Appeal No. 1032 of 2010 of the learned CESTAT) M/s Shri Ambika Ispat (India) Private Limited (Now Keshav Sponge & Energy Private Ltd.) Taraimal, Ambikapur Road, District Raigarh (Chhattisgarh). ---- Appellant Versus 1. The Commissioner Central Excise & Customs, New Central Revenue Building, Civil Lines, Raipur, District Raipur, Chhattisgarh. 2. The Customs, Excise & Service Tax Appellate Tribunal, West Block No. 2, R. K. Puram, New Delhi. ---- Respondents For Appellant : Shri Ashish Shrivastava and Mr. Animesh Verma, Advocates For Respondents : Shri Vinay Pandey, Advocate Hon'ble Shri Thottathil B. Radhakrishnan, Chief Justice Hon'ble Shri Sharad Kumar Gupta, Judge Order On Board Per Thottathil B. Radhakrishnan, Chief Justice 25.08.2017 This appeal is admitted. Shri Vinay Pandey, Advocate appears for the Revenue. The service is complete. Heard finally on the consent of the parties. 1. The only issue that arise for decision in this appeal under Section 2 35G of the Central Excise Act is as to whether the CESTAT was justified in dismissing the appeal filed by the assessee on default on account of non appearance of the appellant or its counsel. Hearing the learned counsel for the parties and perusing the materials on record, we see that though the appeal was filed in 2010, there were certain disputes between the department and the appellant as regards the interlocutory relief that should governs parties pending the appeal before the CESTAT. That culminated in order Annexure A/7 dated 13.09.2012, passed by this Court in Writ Appeal 1029/2012. We are told by the learned counsel for the appellant that the condition imposed as per that order has been satisfied by remittance. We have perused the materials produced along with this appeal which discloses, among other things, the grounds of the appeal raised before the CESTAT. 2. Section 35(C) of the Central Excise Act delineates the power of the Appellate Tribunal. Rule 20 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 provides for dismissal of appeal for default and for restoration of those appeals which are dismissed for default. Adopting the reasoning of the judgment of the Hon'ble Supreme Court in Commissioner of Income Tax v. S. Chenniappa Mudaliar {(1969) 1 SCC 591} rendered under the Income Tax Act and the Income Tax Appellate Tribunal Rules, the Apex Court decided the case of Balaji Steel Re-Rolling Mills v. Commissioner of Central Excise and Customs {(2014) 16 SCC 360} holding that an appeal to which Section 35-C of the Central Excise Act applies cannot be decided 3 by the CESTAT by dismissing it for default. Applying the ratio of that precedent, the appeal which has been dismissed through the impugned order is eligible to be restored by setting aside the order of dismissal of the appeal. 3. In the result, this appeal is allowed setting aside the impugned judgment and remitting the appeal on which that order have been issued to CESTAT for decision on merits after hearing the parties. It is directed that the parties shall mark appearance before the Tribunal on 3rd October, 2017. No costs. Sd/- Sd/- (Thottathil B. Radhakrishnan) (Sharad Kumar Gupta) Chief Justice Judge Kishore "