Advocate Anandaday Misshra
Oflate , very interesting legalities have evolved in relation to Tribunal (CESTAT) . I am highlighting only three aspects as below :
a. No Dismissal for Non-Prosecution– In Balaji Steel Re-Rolling Mills Versus Commissioner Of C.Ex. & Customs reported in 2014(310) E.L.T 209 (SC), the Honourable Apex Court referred to Rule 20 of CESTAT (Procedures) Rules ,1982 and Section 35C of CEA,1944 and held that Tribunal can only pass order on appeal confirming, modifying or annulling the decision or order appealed against or may remand the matter .It further held that it does not have any power 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 .
It is already a settled law that an appellant shall not suffer due to non prosecution and CESTAT is duty bound to dispose the appeal on merits .
b. No Pre-deposit in Remand – In MAA Mahamaya Industries Ltd versus C.C.E.,C. & S.T.,reported in 2014(310) E.L.T 244 (A.P), the Honourable High Court of Andhra Pradesh held that CESTAT being a appellate authority has no power to ask for security for re-adjudication of matter remanded by it to the Commissioner.
It was further held that CESTAT does not have any powers like Civil Court to pass appropriate order to meet the ends of justice .In any event , logically question of deposit does not arise unless there is an adjudication to create a liability on the appellant .
It is pertinent to note that in past also similar ratio was laid down by various courts of law .
c. Power of Contempt Proceedings – In Lorenzo Bestonso Versus Commissioner of Customs(Import), Nhava Sheva reported in 2014-TIOL-2224-CESTAT-MUM, the Honourable Tribunal directed the Commissioner of Customs (Import), Nhava Sheva to show cause as to why contempt proceedings should not be initiated against him in accordance with the law for non-implementation of this Tribunal’s orders.
The department failed to refund the pre deposit amount to the appellant even when its appeal was allowed.
In next part of the series i.e Interesting Legalities Connected With Customs,Excise & Service Tax Appellate Tribunal (CESTAT) ,some more interesting aspect will be discussed .
(Advocate Anand Mishra, AMLEGALS– The author is a leading indirect tax advocate handling cases in CESTAT & High Courts of India. He can be contacted on [email protected] and for more please refer www.amlegals.com)