2007 (1) TMI 367 - AT - Central Excise

Summary

Issues:
1. Dismissal of appeal by the Commissioner (Appeals) for delay in deposit of ordered duty.
2. Authority of appellate tribunal to dismiss appeal for delayed payment.
3. Exercise of discretionary power by appellate authorities under Section 35F of the Central Excise Act, 1944.

Analysis:

Issue 1: Dismissal of appeal for delay in deposit of ordered duty
The appellant argued that the delay in depositing the duty ordered by the Stay Order should not lead to the dismissal of the appeal. They contended that the dismissal would amount to a denial of justice as there is no provision in law permitting such action. The appellant emphasized that the failure to comply with the Stay Order should not result in the deprivation of the right to be heard, and the dismissal of the appeal was unjust in the interest of justice.

Issue 2: Authority of appellate tribunal to dismiss appeal for delayed payment
The Departmental Representative supported the dismissal of the appeal, stating that failure to comply with the interim direction of the Commissioner (Appeals) hinders the appellant's ability to pursue their appeal remedy. It was argued that the appellate authority should prioritize the protection of revenue during the appeal process and that the dismissal of the appeal was justified in the absence of provisions for hearing appeals in case of delayed payment.

Issue 3: Exercise of discretionary power under Section 35F
The judgment highlighted the discretionary power conferred on appellate authorities by Section 35F of the Central Excise Act, 1944, to either dispense pre-deposit or direct partial deposit during the appeal process. It was emphasized that the exercise of such discretion should be judicious and in accordance with the law. The judgment also referenced previous legal precedents to support the conditional nature of the right of appeal and the obligation to deposit demanded duties or penalties pending appeal.

In conclusion, the appellate tribunal allowed the appeal by remanding the matter back to the Commissioner (Appeals) for a comprehensive consideration of the issues. The judgment underscored the importance of affording the appellant a reasonable opportunity to be heard and emphasized the need for fair justice without reluctance.