2005 (3) TMI 633 - AT - Central Excise

Summary

Issues:
- Appeal filed without deposit of Service Tax and penalty
- Application for waiver of pre-deposit filed after the expiry of the time limit
- Contention regarding the filing of the appeal within the period of limitation
- Revenue's argument on the incompleteness of the appeal due to lack of deposit and waiver application
- Consideration of the waiver application during the pendency of the appeal
- Lack of prescribed time limit for filing the stay application
- Setting aside the impugned order and remanding the matter for re-consideration of the stay application on merits

Analysis:
The appeal in question was filed without the deposit of Service Tax and penalty, leading to a dismissal by the Commissioner (Appeals) due to the absence of an application for waiver of pre-deposit within the specified 90-day time limit. The applicant contended that the appeal was filed within the limitation period, while the application for stay was submitted later during the appeal's pendency, citing the absence of a prescribed time limit for filing the waiver application under Rule 35F of the Central Excise Act.

The Revenue maintained that the dismissal of the appeal was justified as it was incomplete without the required deposit and waiver application. However, it was acknowledged by the Revenue that the waiver application was indeed filed while the appeal was ongoing. Given the lack of a defined time limit for the stay application, the Commissioner (Appeals)'s finding that the application was filed after the limitation period was deemed unsustainable. Consequently, the impugned order was set aside, and the matter was remanded to the Commissioner (Appeals) for a reconsideration of the stay application on its merits.

The decision emphasized that the Commissioner (Appeals) had not adjudicated the appeal on its merits, making it appropriate for a reevaluation of the stay application. The Commissioner (Appeals) was instructed to waive the pre-deposit of the demand and penalty and decide the stay application following a proper hearing for the applicants in accordance with the law. Ultimately, the appeal was disposed of through remand, allowing for a fresh review of the case.