The main legal point established in the judgment is that the Tribunal cannot dismiss an appeal for non-appearance without considering the merits of the case, and it is obligated to restore the appeal if sufficient cause for non-appearance is shown.

ORDER

1. Present appeal is filed under Section 35G of the Central Excise Act, 1944 (for short, ’the Act’) against the order dated 01.08.2018 whereby restoration application was dismissed in Service Tax Appeal No. 1456/2010 by the learned Customs, Excise and Service Tax Appellate Tribunal, (for short, ’CESTAT’).

2. Vide show cause notice dated 26.05.2008, a demand of central excise duty to the tune of Rs. 13,81,755/- was raised under the proviso to Section 11A(1) of the Act. In response to the same, reply was filed on 16.06.2008 by the appellant on merits. Learned Additional Commissioner rejected the submissions made by the appellant in reply and vide Order-in-Original No. 58/2009 dated 06.11.2009, confirmed the demand raised along with equivalent penalty and interest. The matter was agitated by the appellant before the learned Commissioner (Appeals) who vide Order-in-Original dated 30.03.2010 upheld the above said Orderin-Original dated 06.09.2009.

3. Being aggrieved by the same, under Section 35G of the Act, appeal was preferred before the CESTAT (Tribunal) wherein vide order dated 22.12.2016, the appeal was dismissed in non-prosecution/in default for absence of the appellant. Against the same, appellant had filed an application for restoration of appeal and recalling of the order dated 22.12.2016. The said application was dismissed vide order dated 01.08.2018 and therefore present appeal was filed on the following substantial questions of law :-

"1. Whether, order passed by the CESTAT dated 1.08.2018 cannot be said to be contrary to the mandatory provisions of rule 20 of CESTAT (procedure) Rules 1982, by which the Tribunal dismiss the restoration of application for restoring the order dated 22.12.2016 passed by the Tribunal?

2. Whether, order passed by the CESTAT on 1.8.2018 dismissing the restoration application is not contrary to the law laid down by the Apex Court in the case of Balaji Steel Re-rolling Mills Vs. Commissioner of Customs reported in 2014 (310) ELT 209(SC), while recalling the order passed by the Tribunal dated 22.12.2016?

3. Whether, the Tribunal was justified in holding that restoration application filed by the appellant is beyond time whereas no such time limit is provided under the law, as such conclusion arrived at by the CESTAT can be said to be proper?"

4. With the consent of parties, the matter was heard finally.

5. The limited question involved in the present appeal pertains to first, whether the Tribunal has power to dismiss the appeal for want of non-appearance or non contest by the appellant/his counsel? And second, Whether the Tribunal can dismiss the appeal without considering the merits of the case?

6. In the case in hand, on 22.12.2016 the matter was taken up by the Tribunal after six years in Central Excise Appeal which was filed in the year 2010. For the reasons best known to the registry of the Tribunal or to the appellant’s counsel, none appeared for the appellant. The Tribunal dismissed the appeal in default without considering the case on merits. Against the same, recalling application was filed as the concerned advocate could not make alternative arrangements, who was situated at Jaipur and the Tribunal was situated in Delhi. He submitted that nonappearance was not deliberate. He cited Hon’ble Apex Court judgments reported in 2014 (310) E.L.T. 209 (S.C.) titled as Balaji Steel Re-rolling Mills Vs. Commissioner of C. Ex. & Customs, wherein it was held that the Tribunal had no authority to dismiss the appeal in an exparte manner on account of non-appearance/absence of the appellant without discussing the merits of the case as the statutory mandate of Section 35C of the Act does not give power of dismissal without considering the merits and further in the light of Rule 20 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 (for short, ’the Rules) and in the interest of fair play, the restoration should have been granted.

7. Learned Tribunal vide their order dated 1.8.2