NASIM SIKANDAR, J.---This constitutional petition seeks to challenge two orders of the learned Customs, Federal Excise and Sales Tax Appellate Tribunal dated 22-5-2006 and 30-4-2007.
Through the first order learned Tribunal dismissed the appeal filed by the petitioner for non- prosecution while by way of second order the application for restoration of the appeal was dismissed.
2. According to the learned counsel representing the respondent- Revenue since .The present petitioner as appellant failed to put in appearance, the Tribunal had all the legal justification in the world to dismiss its appeal for non-prosecution. Learned counsel for the appellant, however, denies the factum of service.
3. Be that as it may, since the ratio settled in the case re: Walayat Flour Mills, Lyallpur v.
Commissioner of Income-Tax, Rawalpindi 1973 PTD 530 decided on 14-5-1973 this Court has consistently held that the Tribunal of special jurisdiction cannot dismiss a petition or appeal on the technical ground of default in appearance. In that case this Court benefited from a judgment from Indian jurisdiction re: S. Chenniappa Mudalier v. Commissioner of Income-Tax (1964) to Taxation
220. A special Bench of the Madras High Court consisting of the Chief Justice and two other learned Judges on examining considerable case law and authorities came to the conclusion that Rule 24 of the Income Tax Appellate Tribunal Rules insofar as it enable the dismissal of an appeal in default for non-prosecution of the appellant was ultra vires of the substantive provisions of the Income- Tax Act, 1922. The provisions of section 194-B [Order of Appellant Tribunal] of the Customs Act, 1969 are in pari materia with section 33 (4) of Income Tax Act, 1992 (XI of 1992). Subsection (1) of Section 194-B envisages that "the Appellate Tribunal may after giving the parties to the appeal an opportunity of being heard, pass such orders thereon 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." It is not clear if the Tribunal has so far framed rules of its procedure under Subsection (6) of Section 194-A or subsection (6) of section 194-C of the Customs Act, 1969. The provisions of section 194-B as reproduced above are, however, clear that the Appellate Tribunal is required to give an opportunity of being heard to the parties to an appeal and to pass such orders as it thinks fit confirming, modifying of annulling the decision or order appealed against or may remand the case to the authority passing the order impugned before it. The substantive provisions of section 194-B cannot be interpreted in any other manner except that the Tribunal is competent to confirm, modify, annul as well as to remand an order appealed against, which is possible only after stating reasons therefore. The disposal of appeal for non-prosecution is not discernible from the substantive provisions of section 194-B of the Act, 1969. Therefore for the various reasons recorded by the Court in re: Walayat Flour Mills (Supra), the impugned order for dismissal of the appeal for non-prosecution as also the second order refusing to restore the appeal are set aside.
Consequently, the appeal filed by the petitioner shall be deemed pending before the Tribunal, to be disposed of after giving both parties an opportunity of being heard.