Arijit Pasayat, C.J.
1. Petitioner's appeal no. E/4253-4254/94-B filed under the Central Excise Act, 1944 (in short, the Act) was dismissed for non-prosecution by order dated 03.05.2000. Application for restoration was filed, which was numbered as E/ROA/112/2000-B. The same was rejected on the ground that the reasons indicated, seeking restoration for the appeals, were not acceptable. Another application was filed inter alias taking the stand that even while dismissing appeal for non-prosecution, the same has to be decided on merits and mere dismissal for non-prosecution is neither permissible nor legal. Tribunal did not accept this stand as it was of the view that there is no provision in the Act permitting rectification of mistake in order passed in the miscellaneous application.
2. Learned counsel for the petitioner submitted that the procedure adopted by the Tribunal is contrary to law. Learned counsel for the respondents, on the other hand, submitted that when the appellant does not show interest int he appeal, dismissal for non-prosecution is not impermissible.
3. Section 35C(1) of the Act and Section 129(B) of the Customs Act, 1962 (in short, the Customs Act') which deal with the Constitution o the Appellate Tribunal, which is called the Customs, Excise and Gold (Control) Appellate Tribunal inter alias deal with the powers of the Tribunal. Section 35C(1) of the Act, which throws considerable light on the powers of the Tribunal reads as follows:-
'Section 35C(1) : The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders there on a sit thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or think fit, for a fresh adjudication or decision, as the case may be, after, taking additional evidence, if necessary.'
Section 129B(1) of the Customs Act is also couched in similar language and reads as follows:-
'Section 129B(1) : The Appellate Tribunal may; after giving the part is to the appeal, an opportunity of being heard, pass such orders there on as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary.'
4. The language used in both Sections 35C(1) of the Act and 129B(1) of the Customs Act uses the expression 'thereon' in respect of an appeal. The Supreme Court had occasion to deal with the expression Commissioner of Income Tax v.S. Channlappa Mudaliar : 74ITR41(SC) and Hukumchand Mills Ltd. V. Commissioner of Income Tax : 63ITR232(SC) in the background of Section 33(4) of the Indian Income Tax Act, 1922 ( in short, 1922 Act) as well as Section 66 thereof relating to reference to the High Court. It was held that Appellate Tribunal has no power to dismiss an appeal for non-appearance of the appellant and the appeal must be decided on merits. The Gujarat High Court had also occasion to consider a similar issue in Viral Laminates Pvt. Ltd. v. Union of India : 1998(100)ELT335(Guj) .
5. On a bare reading of the provisions and having regard to the scheme of the Act as well as of the Customs Act, there can be no manner of doubt that the appeal filed before the Tribunal has to be disposed of on merits and cannot be dismissed for default of appearance of the appellant. Where there is no appearance on behalf of the appellant, the Tribunal has to decide the appeal ex-parte. T he use of the expression 'thereon' means that the Tribunal has to pass order on the subject matter of the appeal, and on the issues in controversy. As has been observed by the Gujarat High Court in Viral Laminates's case (supra), the expression 'thereon' does not mean that the Tribunal can pass an order of dismissal for default of appearance, since such an order has no nexus with the matter in controversy.
6. It has also been brought to our notice that in E/ROA/783-786/99 Bom and other cases, the West Regional Bench of the Tribunal restored the appeals, which were dismissed for non-appearance. Learned counsel for the Revenue submitted that an order dismissing the appeal cannot be recalled. This pleas is clearly untenable in view of the decision in J.K. Synthetics Ltd. CCE : 1996(86)ELT472(SC) . In that case, it was held by the Supreme Court that an order deciding the appeal ex-parte can be recalled and the appeal can be heard afresh, if the appellant shows sufficient cause for his non-appearance.
Accordingly,order dated 3.5.2000 is set aside and the appeal is restored for fresh disposal on merits.
7. To avoid unnecessary delay, let the parties appear before the Tribunal on 30.05.2001 when the Tribunal shall fix the date of hearing.
8. This petition is allowed to the indicated.