2004 (6) TMI 574 - AT - Central Excise

Summary

Issues:
Non-compliance with Section 35F of the Central Excise Act for waiver of pre-deposit and stay of recovery.

Analysis:
The judgment pertains to two appeals against orders of the Commissioner (Appeals) rejecting the appeals of the assessee due to non-compliance with Section 35F of the Central Excise Act. The strict view taken by the Commissioner (Appeals) required the appellant to file an application under Section 35F for waiver of pre-deposit along with the appeal. However, the Tribunal found this view inconsistent with the legislative intent behind Section 35F. The section mandates depositing duty demanded or penalty levied pending appeal, but does not specify that the application for waiver must accompany the appeal. The Tribunal emphasized that pre-deposit is not a prerequisite for appeal admission but for considering the appeal on its merits.

In one of the appeals, the appellant did file an application under Section 35F before the Commissioner (Appeals) disposed of the appeal. Nevertheless, the Commissioner (Appeals) rejected the appeal for non-compliance without providing an opportunity to the appellant to rectify the issue. The Tribunal noted that natural justice was denied to the appellant as they were not given a chance to address the non-compliance with Section 35F. The Tribunal found the orders unsustainable due to the lack of opportunity given to the appellant to rectify the non-compliance.

Consequently, the Tribunal set aside the impugned orders and allowed the appeals by way of remand. The Commissioner (Appeals) was directed to provide the appellant with an effective opportunity under Section 35F before proceeding to dispose of the appeals on merits. The appellants were to be granted a reasonable opportunity to be heard on stay applications and appeals. The judgment underscores the importance of procedural fairness and adherence to the principles of natural justice in appellate proceedings under the Central Excise Act.