The Tribunal must consider legal grounds and reasons for non-appearance before dismissing an appeal for default, and the appeal should be decided on merits in accordance with relevant legal provisions and precedents.

T.S. SIVAGNANAM, J.

1. This appeal, by the Director of a private limited company, which is under liquidation, is directed against the order passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai (for short, the Tribunal) in Miscellaneous Order No.40116/2018 dated 12.2.2018. By the impugned order, the application filed by the appellant for restoration of the appeal filed by the appellant, which was dismissed for default vide final order dated 02.8.2017, was dismissed.

2. The above appeal is admitted on the following substantial question of law :

"Whether the impugned order of the Tribunal is bad in law for departing from the following principles :

(i) by virtue of Article 141 of The Constitution of India, the issue must be decided strictly in accordance with law laid down by the Supreme Court it being the last word on the subject ? And

(ii) if, there is no decision of the Supreme Court on the issue, then the effort must be to decide the issue by any decision of the High Court of our country, if holding the field."

3. By the Order-in-Original dated 31.12.2012, the Adjudicating Authority confirmed the demand of central excise duty to the tune of Rs. 13,11,35,087/- together with cess and other charges payable by M/s.Hi Tech Mineral Industries Covai Private Limited under Section 11A(2) of the Central Excise Act, 1944 (for brevity, the Act). The demand for payment of interest under Section 11AB of the Act was confirmed and penalty equivalent to the amount of excise duty was also levied under Section 11AC of the Act on the said company. Further, a sum of Rs. 50 lakhs was imposed as penalty on the appellant, who was the Commercial Director of the said company under Rule 26 of the Central Excise Rules, 2002.

4. As against the said Order-in-Original dated 31.12.2012, the said company as well as the appellant herein filed two appeals before the Tribunal. During the relevant time, both the said company as well as the appellant herein were represented by a common counsel. The appellants before the Tribunal sought for waiver of condition of pre-deposit and the Tribunal, between 2014 and 2017, passed certain interim orders, the last of which being on 22.3.2017, in which, the Tribunal noted that the said company was wound up, that the Official Liquidator of this Court was appointed as the Provisional Liquidator in Comp.A.No.1141 of 2014 dated 23.3.2015 and that the Ex-Directors of the said company were directed to file the statement of affairs before the Official Liquidator within 21 days. Thus, the Tribunal, in the said order dated 22.3.2017, ordered notice to the Official Liquidator to inform the Tribunal as to whether he chooses to be necessary respondent in the appeals and if he chooses to do so, he may file an appropriate application.

5. When the cases came up for hearing before the Tribunal on 02.8.2017, it appears that both the Official Liquidator as well as the appellant herein were not represented by counsel. It is submitted that on account of unavoidable circumstances and due to ill-health, the appellant herein could not travel to Chennai from Coimbatore and that therefore, he could not appear. Consequently, the appeals filed by both the company as well as the appellant herein were dismissed on account of default in not appearing before the Tribunal.

6. Before the Tribunal, the appellant before us filed an application for restoration of the appeal filed by him in terms of Rule 41 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 (for brevity, the 1982 Rules), pointing out that on account of ill-health, the appellant could not appear and that the non appearance of their counsel was entirely bona fide and unintentional. It was further pointed out that the appellant was diligently pursuing the appeal before the Tribunal and was represented for all the hearings before the Tribunal and that only on the last date i.e. 02.8.2017, the advocate could not appear. It was also