2011 (3) TMI 949 - AT - Central Excise

Non compliance of Section 35F - Appellants that certainly there was lapse on the part of the appellants in the sense that they have failed to file the required application for waiver of the requirement of pre-deposit - the total amount of duty confirmed against the appellants is Rs.2, 31, 183/- and the appellants had already deposited a sum of R. 2, 00, 000/- as was promised on the last date of hearing - Considering the same set aside the impugned order and remand the matter to the Commissioner (Appeals) to decide the same while considering the sum of Rs. 2 lakhs already deposited to be sufficient for the compliance of Section 35F of the Central Excise Act 1944 - Appeal is allowed by way of remand.

Summary

Issues: Non-deposit of required amount leading to dismissal of appeal; Request for waiver of pre-deposit; Compliance with Section 35F of the Central Excise Act, 1944.

Non-deposit of required amount leading to dismissal of appeal:
The appeal before the Appellate Tribunal arose from an order passed by the Commissioner (Appeals), Lucknow, which was disposed of due to the appellants' failure to deposit the amount as directed by the adjudicating authority. The Deputy Commissioner had confirmed a duty demand of Rs.2,31,183/- along with interest and penalty against the appellants. Despite preferring an appeal, the appellants did not file for waiver of the deposit amount nor deposited it, resulting in the dismissal of the appeal by the Commissioner (Appeals).

Request for waiver of pre-deposit:
The appellants acknowledged their lapse in not filing the required application for waiver of the pre-deposit requirement. However, they had already deposited Rs. 2,00,000/-, arguing that this should allow them a fair opportunity to contest the proceedings on merits. The appellants sought leniency based on the amount already paid, emphasizing their willingness to participate in the proceedings despite the initial non-compliance.

Compliance with Section 35F of the Central Excise Act, 1944:
The Tribunal noted that the total confirmed duty amount against the appellants was Rs.2,31,183/-, of which Rs. 2,00,000/- had been deposited by the appellants. In light of this deposit, the Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for a decision on the merits. The Tribunal considered the Rs. 2 lakhs deposit as sufficient compliance with Section 35F of the Central Excise Act, 1944, directing the Commissioner (Appeals) to hear the appellants and make a decision while treating the deposit as meeting the statutory requirement. The appeal was allowed without expressing an opinion on the case's merits, and the matter was disposed of accordingly.