Appellate Tribunal – Exparte order: Tribunal must decide appeal on merits, if assessee files submissions in writing

The appellant’s appeal before the CESTAT was dismissed for
non prosecution. The application filed by the appellant for setting aside the
order of dismissal for non prosecution was rejected by the Tribunal.

In a further appeal, the Hon’ble High Court observed that the
Tribunal has no power to dismiss an appeal for default on the part of an
appellant in making an appearance. Even if the appellant is absent, the Tribunal
is required to decide the appeal on the merits. The Tribunal presently has its
benches only in four or five places in India. An appellant, who on account of
his place or residence or business being far away from the place of sitting for
the Tribunal, may not, except at a high cost, be able to attend the hearing;
especially when we know that matters are usually adjourned for several times. In
such an event, if the appellant files on record his submissions in writing, the
Tribunal must decide the appeal on the merits and on the basis of the said
submissions. In that case, the Tribunal would not have a power to dismiss the
appeal; but where the appellant, in spite of notices, is persistently absent,
and the Tribunal, considering the facts of the case, is of the view that the
appellant is not interested in prosecuting the appeal, can, in the exercise of
its inherent power, dismiss the appeal for non prosecution. The conclusion of
the Tribunal that the appellant is not interested in prosecuting the appeal must
be arrived at based on the facts of each case, and not merely on account of the
absence of the appellant on a solitary occasion.

In the present case, the Tribunal had dismissed the appeal on
account of the absence of the appellant only on the occasion. The fact that the
appellant immediately thereafter applied for restoration of the appeal, shows
his intention: that he was interested in prosecuting the appeal, and maybe he
had a justifiable cause for his absence on one occasion. In the circumstances,
the Tribunal ought to have restored the appeal into the file.