CEA/148/2011 of CANNON COLOUR LAB, KURNOOL. Vs THE COMMISSIONER CUSTOMS AND CENTRAL EXCISE, GUNTUR. on 22 July 2026

1. G NARENDRA CHETTY Counsel for the Respondent:

1. P S P SURESH KUMAR The Court made the following:

JUDGMENT: (Per Hon’ble Smt Justice Sunitha Gandham)

This Appeal is filed against the order dated 20.10.2010 made in ST/ROA/23/2010 in ST/444/2007 on the file of Customs, Excise and Service Tax Appellate Tribunal (herein after referred to as ‘Appellate Tribunal’), South Zonal Bench, Bangalore.

2. Feeling aggrieved by the order passed by the Commissioner of Customs and Central Excise (Appeals), Guntur in O.I.A No.23/2007 (T) CE, dated 24.10.2007, appellant filed STC No.444 of 2007 and the same is dismissed for not making pre deposit and for non appearance of the appellant vide final order No.1412/2009 dated 20.11.2009. Against that order, the appellant filed ST/ROA/23/2010 in ST/444/2007 for restoration of appeal in ST/444/2007 which was also dismissed vide final order No.493/2010 dt.20.10.2010 on the ground that it has no power to review its own order to restore the appeal in ST/444/2007.

3. Heard both sides.

4. After hearing the learned counsel for both the parties, this Court came to conclusion that simple question involved in this appeal is, whether Appellate Tribunal has power to restore/consider the application which was filed for restoration of the appeal or not?

5. Learned counsel for the appellant submitted that as per Rule 20 of Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982, (herein after referred to as ‘Rules’), the Appellate Tribunal has to consider the restoration application filed by the appellant, however, without considering relevant provisions, the Appellate Tribunal dismissed the petition and as such, it is liable to be set aside. Learned counsel further would argue that non appearance of the appellant was not deliberate but only due to heavy rains and floods in Kurnool from 28.09.2009 to 02.10.2009, the studio was flooded with water of Tungabadhra and Handri rivers and the appellant’s colour lab was completely submerged in flood water and he sustained loss to a tune of Rs.50 lakhs.

6. As seen from the order of the Appellate Tribunal in ST/444/08, having mentioned the details regarding non-payment of pre deposit under Section 35F of Central Excise Act, 1944, recorded the absence of the appellant, rejected the request letter of the appellant and dismissed the appeal for non compliance. Admittedly, if an appellant fails to make the mandatory pre- deposit, the Appellate authority can dismiss the appeal and if the appellate authority is of the opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. As per the version of the appellant, due to heavy floods at Kurnool from 28.09.2009 to 02.10.2009, his colour lab was completely submerged in the flood water. In the impugned order dated 20.10.2010, the Appellate Tribunal came to conclusion that it has no power to review its own order so as to restore the appeal.

7. In this regard, it is to be noted Rule 20 of the Rules which reads as follows: Rule-20: Action on appeal for appellant's default: Where on the day fixed for the hearing of the appeal or on any other day to which such hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Tribunal may, in its discretion, either dismiss the appeal for default or hear and decide it on merits: Provided that where an appeal has been dismissed for default and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance when the appeal was called on for hearing, the Tribunal shall make an order setting aside the dismissal and restore the appeal.

8. The provisio of Rule 20 of the Rules gives the power to the Appellate Tribunal to set aside the dismissal order and to restore the appeal, if sufficient cause for non-appearance is shown. The use of the word 'shall' in the proviso to Rule 20 even casts an obligation on the Tribunal to restore the appeal.

9. So, on account of Rule 20 of the Rules and in the interest of justice, we are inclined to allow the appeal and refer back the matter to the Appellate Tribunal for consideration of the petition in ST/ROA/23/2010 in ST/444/2007 afresh and to dispose the same in accordance with law.

10. Accordingly, this appeal is allowed by setting aside the order dated 20.10.2010 made in miscellaneous order No.493 of 2010 in ST/ROA/23/2010 in ST/444/2007 passed by the Appellate Tribunal, South Zonal Bench, Bangalore, with a direction to consider the case on merits in accordance with law and to dispose the restoration petition in ST/ROA/23/2010 in ST/444/2007.

As a sequel thereto, pending miscellaneous petitions, if any, shall stand closed. _________________________ JUSTICE BATTU DEVANAND

__________________________ JUSTICE SUNITHA GANDHAM 23.07.2026 knl

Whether the order is : ✓ Speaking Yes/No / Reasoned Yes/No

✓ Reportable Yes/No / Non-Reportable Yes/No