2010 (3) TMI 968 - AT - Central Excise

Summary

Issues: Appeal maintainability before Tribunal

The judgment deals with the issue of the maintainability of an Appeal along with a Stay Petition filed by a party against an order dated 27-3-2009 on a Miscellaneous Application filed before the Commissioner (Appeals) against the Stay Order No. 07/STAY/SH/08 dated 23-12-2008. The primary contention raised was whether the Appeal is maintainable before the Tribunal, with the Jt. CDR arguing that the order of the Commissioner (Appeals) was not a final order under Section 35A of the Central Excise Act, and the Appeal was still pending before the Commissioner (Appeals).

Analysis:
The Appellant had filed an Appeal before the Commissioner (Appeals) against an order demanding interest under Section 11AB(1) of the Central Excise Act. The Stay Petition filed by the Appellant was disposed of by the Commissioner (Appeals) on 23-12-2008, directing the Appellant to pre-deposit a specific amount and staying the recovery of the balance amounts during the pendency of the Appeal. The order stated that the Appeals shall stand dismissed in case of non-compliance with the stay order. The Appellant then filed a Modification Petition seeking waiver of dues and a hearing on the merits. The Commissioner (Appeals) disposed of this petition on 27-3-2009, mentioning that if the pre-deposit was not complied with, the Appeal would stand dismissed on March 31, 2009. However, no formal order dismissing the Appeal was passed thereafter, and the matter was not taken up on the specified date or subsequently.

The Tribunal observed that the mere observation that the Appeal would stand dismissed on a future date does not amount to a final dismissal, especially when the order was passed before the specified date. The judgment highlighted that the order dated 27-3-2009 cannot be considered as an order under Section 35A of the Central Excise Act, and both parties agreed that no prejudice would be caused if such a view was taken. Consequently, the Tribunal held that the Appeal along with the Stay Petition was not maintainable before them. The Commissioner (Appeals) was directed to pass an order under Section 35A after considering the previous orders and granting a reasonable opportunity of hearing to both sides.

In conclusion, the Tribunal found that the Appeal before them was not maintainable due to the lack of a final order under Section 35A of the Central Excise Act. The judgment emphasized the importance of formal orders in dismissing appeals and directed the Commissioner (Appeals) to pass a proper order after considering all relevant factors and providing a fair hearing to both parties.