“11. In the decision in Viral Laminates (P) Ltd., the challenge was to Rule 20 of the Customs, Excise and Gold (Control) Appellate Tribunal Rules, 1982, which enables the Tribunal to dismiss the appeal for default of appearance, as being ultra vires the provisions of Section 35C (1) of the Act and Section 129B(1) of the Customs Act, 1962. The Division Bench of the Gujarat High Court held that having regard to the scheme of the Act as well as the Customs Act, 1962, there was no manner of doubt that the appeal filed before the Appellate Tribunal has got to be disposed of on merits and not for default of appearance of the appellant, that the Appellate Tribunal has to decide the issue ex parte, that dismissing the appeal for non appearance does not seem to be legally or even, on equity of grounds, correct when the Hon'ble Supreme Court in JK Synthetics Ltd., held that an appeal decided ex parte can be recalled and heard afresh if the appellant shows sufficient cause for his absence. The Gujarat High Court pointed out that Rule 20 of the relevant Rules empowers the Tribunal to restore an appeal if sufficient cause is shown for absence and that the power to dismiss an appeal for non appearance of the appellant clearly comes into conflict with Sub-Section (1) of Section 35C of the Act as well as Section 129B (1) of the Customs Act, 1962. It was further held that that part of Rule 20 of the relevant Rules, which enables the Appellate Tribunal to dismiss an appeal for default of appearance as well as the Proviso to Rule 20 of the relevant Rules, are ultra vires the provisions of Section 35C(1) of the Act as well as 129B of the Customs Act, 1962. It was also held that the Appellate Tribunal has no power to dismiss the appeal for non appearance of the appellant and that the appeal should be decided on merits.
