HC: Without adjudicating on merits, The CESTAT cannot reject admitted appeal on monetary grounds

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HC quashes CESTAT order dismissing appeal and rectification of mistake application under proviso to Section 35B of Central Excise Act, without adjudication on merit; Observes, while it was undisputed that impugned order was otherwise appealable before CESTAT, the Appellate Tribunal exercised its discretion under proviso to Section 35B thereby refusing to admit appeal where duty involved / differential duty amount / penalty / fine amount did not exceed Rs. 50,000;

Accepting assessee’s plea that said proviso could not have been invoked post admission, HC states that once appeal was admitted and kept pending, no useful purpose could be served by dismissing same on ground of maintainability during final hearing; Time which CESTAT wasted for exercising its discretion could very well and fruitfully been devoted to adjudication on merits, remarks HC while stating further that, “It is improper to throw out a litigant on such a technical ground after the appeal is entertained and kept pending… Ultimately, it is a discretion vesting in the tribunal, which it must exercise judiciously and not capriciously”; Consequently, restores appeal on the file of CESTAT.

Citation:  [ TS-622-HC-2016(BOM)-EXC ]