2010 (7) TMI 337 - AT - Central Excise

Appeal disposed by Commissioner without disposing stay application - no appeal can be disposed of unless the application under Section 35F of the Central Excise Act, 1944/under Section 129E of the Customs Act, 1962 is first disposed of - appeal is allowed by way of remand

Summary

Issues:
1. Confirmation of demand by Additional Commissioner
2. Appeal before Commissioner (Appeals) and application for waiver under Section 35F
3. Setting aside of demand by Commissioner (Appeals)
4. Appeal against setting aside of demand by Revenue
5. Disposal of appeal without passing orders on stay application

Confirmation of demand by Additional Commissioner:
The Additional Commissioner confirmed a demand of Rs. 6,34,585/- along with education cess and a further demand of Rs. 3,09,962/- plus educational cess, imposing a penalty on the assessees. The assessees appealed before the Commissioner (Appeals) with an application for waiver under Section 35F of the Central Excise Act, 1944. The Commissioner (Appeals) allowed the appeal based on Tribunal decisions, leading to the Revenue appealing against the setting aside of the demand of Rs. 3,21,227/-.

Appeal before Commissioner (Appeals) and application for waiver under Section 35F:
The assessees filed an appeal before the Commissioner (Appeals) along with an application for waiver under Section 35F of the Central Excise Act, 1944. However, the appeal was disposed of without passing orders on the stay application filed by the assessees. The learned DR pointed out that the appeal cannot be disposed of unless the application under Section 35F is first decided. Consequently, the order was set aside, and the case was remitted to the Commissioner (Appeals) to first decide on the application under Section 35F and then on the appeal after providing a reasonable opportunity for a personal hearing to the assessees.

Setting aside of demand by Commissioner (Appeals):
The Commissioner (Appeals) set aside the demand of Rs. 3,21,227/- based on certain decisions of the Tribunal. This decision led to the Revenue appealing against the setting aside of this demand, resulting in the matter being remanded back for further consideration.

Appeal against setting aside of demand by Revenue:
The Revenue appealed against the setting aside of the demand of Rs. 3,21,227/- by the Commissioner (Appeals), leading to the matter being remitted back for reconsideration.

Disposal of appeal without passing orders on stay application:
The appeal was disposed of by the Commissioner (Appeals) without passing orders on the stay application filed by the assessees. The learned DR highlighted that the appeal cannot be disposed of without first deciding on the application under Section 35F of the Central Excise Act, 1944. Consequently, the order was set aside, and the case was remitted for proper consideration.