2007 (7) TMI 574 - AT - Central Excise

Summary

Issues involved: Stay Petition pending before lower Appellate Authority, requirement of pre-deposit u/s 35F of Central Excise Act, 1944.

The judgment addresses the situation where both the assessee/appellant firm and the respondent have filed appeals against the impugned order passed by the lower Appellate Authority. The appellant firm, M/s. New Tobacco Limited, has also filed a Stay Petition. The Tribunal notes that the lower Appellate Authority did not decide on the Stay Petition before proceeding to decide the appeal on merit. This action is deemed improper as per Section 35F of the Central Excise Act, 1944, which requires the deposit of demanded duty and penalty or waiver of the same before deciding the appeal on merit. Consequently, the impugned order is set aside, and the matter is remanded to the lower Appellate Authority with a directive to first decide the pending Stay Petition before proceeding to decide the appeal on merit. The lower Appellate Authority is instructed to resolve the matter within forty-five days from the date of receipt of this Order due to the significant revenue involved.

Conclusion: The impugned order is set aside, and the matter is remanded to the lower Appellate Authority with a directive to decide the pending Stay Petition before proceeding to decide the appeal on merit, in compliance with Section 35F of the Central Excise Act, 1944.