BALAJI STEEL RE-ROLLING MILLS versus COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS

Citation: [2014] 11 S.C.R. 1168 · Decided: 14-11-2014 · Supreme Court of India · Bench: ANIL R. DAVE · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
(2014] 11 S.C.R. 1168 
BALAJI STEEL RE-ROLLING MILLS 
v. 
COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS 
(Civil Appeal No. 10265 of 2014) 
I 
NOVEMBER 14, 2014 
[ANIL R. DAVE, KURIAN JOSEPH AND 
R.K. AGRAWAL, JJ.] 
Central Excise Act, 1944 - s. 35C - Order of Appellate 
C Tribunal - Dismissal of appeal by Tax Appellate Tribunal for 
want of prosecution - lntefference with - Held: s.35 does not 
give any power to the tribunal to dismiss the appeal for default 
or for want of prosecution in case the appellant is not present 
when the appeal is taken up for hearing - Tribunal should 
D have decided the appeal on merits - Thus, the order passed 
by the tribunal as upheld by High Court set aside. 
Allowing the appeal, the Court 
HELD: Section 35C of the Central Excise Act, 1944 
E enjoins upon the tribunal to pass order on the appeal 
confirming, modifying or annulling the decision or order 
appealed against or may remand the matter. It does not 
give any power to the tribunal to dismiss the appeal for 
default or for want of prosecution in case the appellant 
F is not present when the appeal is taken up for hearing. 
The tribunal ought to have decided the appeal on merits. 
The High Court also erred in law in upholding the order 
of the tribunal. The order passed by the High Court as 
also the tribunal is.set aside. [Paras 11, 13, 14, 15] [1171-
G H; 1172-A; 1174-F, G] 
H 
The Commissioner of Income-Tax, Madras vs. S. 
Chenniappa Mudaliar, Madurai 1969 (1) SCC 591: 1969 (3) 
SCR 818 - referred to. 
1168 
• 
BALAJI STEEL RE-ROLLING MILLS v. COMMISSIONER OF 1169 
CENTRAL EXCISE AND CUSTOMS 
Case Law Reference: 
1969 (3) SCR 818 
Relied on 
Para 13 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 
10265 of 2014. 
From the Judgment & Order dated 18.01.2014 of the High 
Court of Judicature of Bombay, Bench at Aurangabad in Central 
Excise Appeal No. 14 of 2013. 
Shashibhushan P. Adgaonkar for the Appellant. 
K. Radhakrishnan, Sunita Rani Singh (for B. Krishna 
Prasad) for the Respondent. 
The Judgment of the Court was delivered by 
R.K. AGRAWAL, J. 1. Leave granted 
2. The sole question of law which arises for consideration 
in the present appeal is as to whether the Customs, Excise and 
Service Tax Appellate Tribunal (in short 'the Tribunal') has the 
A 
B 
c 
D 
power to dismiss the appeal for want of prosecution or not. 
E 
3. The appellant is a partnership firm engaged in the 
manufacture and sale of Hot Re-rolled products. The 
Commissioner of Central Excise and Customs, Aurangabad, 
vide order dated 20.07.1999, re-fixed the annual capacity of 
production and duty liability of the appellant. Being aggrieved, 
F 
the appellant moved the Tribunal. The Tribunal, vide order dated 
18.01.2002, remanded the matter back to the Commissioner 
of Central Excise and Customs with a direction to determine 
the capacity of production in accordance with law after hearing 
the appellant. The Commissioner of Central Excise and 
G 
Customs, Aurangabad, once again affirmed the order dated 
20.07.1999. The appellant filed an appeal before the Tribunal 
against the order dated 14.05.2004 passed by the 
Commissioner of the Central Excise & Customs, Aurangabad 
which was placed for hearing on 22.08.2012. On the very said 
H 
1170 
SUPREME COURT REPORTS 
[20141 11 s.c:R. 
A 
date, the appellant as also his counsel were not present. The 
Tribunal, therefore, dismissed the appeal for want of 
prosecution. The restoration application was also dismissed. 
The appellant preferred an appeal before the High Court of 
Bombay, Bench at Aurangabad being Central Excise Appeal 
B 
No. 14 of 2013. The High Court, by order dated 18.01.2014, 
dismissed the appeal on the ground that no substantial question 
of law arises for consideration. 
c 
4. Against the said order, the appellant has preferred this 
appeal by way of special leave. 
5. Heard Mr. Shashibhushan P. Adgaonkar, learned 
counsel for the appellant and Shri K. Radhakrishnan, learned 
senior counsel for the respondent. 
6. Learned counsel for the appellant submitted that even 
D if the appellant was not present before the Tribunal when the 
appeal was taken up for hearing, it could not have been 
dismissed for want of prosecution as Section 35C of the Central 
Excise Act, 1944 (in short 'the Act') enjoins upon the Tribunal 
to pass orders thereon as it thinks fit, that is, confirming, 
E 
modifying or annulling the decision or order appealed against 
or may refer the case back to the authority wh

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