2011 (5) TMI 285 - AT - Central Excise

Waiver of pre-deposit - Ld.Advocate appearing for the appellants fairly concedes that neither Stay Petition was filed nor the deposits were made, but submits that the same was inadvertent mistake on the part of the appellant - The Commissioner(Appeals) heard the appellant on merit - The appellant should be given another chance to file Stay Petition - Thus, set aside the impugned order and remand the matter to Commissioner(Appeals) - The appellant is directed to file Stay Petition before Commissioner(Appeals), which shall be decided by Commissioner(Appeals) in accordance with the law.

Summary

Issues:
1. Non-compliance with the provisions of Section 35F of the Central Excise Act, 1944 regarding pre-deposit.
2. Appeal dismissed by Commissioner(Appeals) without deciding on merit due to lack of Stay Petition and deposit.

Issue 1: Non-compliance with Section 35F provisions
The judgment addresses the non-compliance with the provisions of Section 35F of the Central Excise Act, 1944, concerning the pre-deposit requirement. The appellant failed to file a Stay Petition or make the necessary deposits, leading to the dismissal of the appeal by the Commissioner(Appeals). The appellant's advocate acknowledged this oversight but argued it was inadvertent. The Tribunal recognized the error and agreed that the appellant should be given another opportunity to rectify it. Consequently, the Tribunal set aside the impugned order and remanded the matter to the Commissioner(Appeals) for the appellant to file a Stay Petition within 15 days for reconsideration.

Issue 2: Appeal dismissal without deciding on merit
The Commissioner(Appeals) dismissed the appeal without deciding on its merit due to the absence of a Stay Petition and deposit. The appellant's advocate contended that had a Show Cause Notice been issued for non-compliance, they would have filed the Stay Petition. The Tribunal acknowledged this argument and allowed the appellant another chance to file the Stay Petition. The Tribunal directed the appellant to submit the Stay Petition within 15 days for the Commissioner(Appeals) to review and decide in accordance with the law. By setting aside the impugned order, the Tribunal ensured that the appellant could address the procedural lapse and have their case reconsidered on merit by the Commissioner(Appeals).

In conclusion, the judgment by the Appellate Tribunal CESTAT, Ahmedabad, highlighted the importance of complying with procedural requirements such as filing Stay Petitions and making necessary deposits under Section 35F of the Central Excise Act, 1944. The Tribunal's decision to grant the appellant another opportunity to rectify the oversight and have their appeal reconsidered on merit by the Commissioner(Appeals) demonstrates a fair and just approach to addressing procedural lapses while ensuring due process in legal proceedings.