2011 (2) TMI 1007 - AT - Central Excise

Non-compliance of the provisions of Section 35 F - Rejected the claim for refund on account of payment of education cess through PLA being not admissible and, therefore, had directed the appellants to reverse the said amount within 5 days of receipt of the copy of the order - Held that - Perusal of the impugned order apparently discloses that the appeal has been dismissed solely on the ground of non-compliance of Section 35 F of the said Act - The impugned order, however, does not disclose any opportunity having been given to the appellants to satisfy the Commissioner (Appeals) as to why the appeal should not be dismissed on the ground of non-compliance of Section 35 F of the Act. Besides, as the appellants have expressed willingness to deposit the required amount in terms of order passed by the Commissioner (Appeals) under Section 35 F of the said Act, in all fairness, it is appropriate to set aside the impugned order and give an opportunity to the appellants to comply with the requirements of Section 35 F.

Summary

Issues:
Appeal dismissed for non-compliance of Section 35 F of the Central Excise Act.

Analysis:
The appeal in question arose from an order passed by the Commissioner (Appeals) dismissing the appellants' claim for a refund of Rs.7,94,221 due to non-compliance with Section 35 F of the Central Excise Act. The adjudicating authority had rejected the claim, directing the appellants to reverse the amount within five days. The appellants then filed an appeal, which was subsequently dismissed by the Commissioner (Appeals) due to non-compliance with Section 35 F. The appellants, through their advocate, expressed willingness to comply with the requirements of Section 35 F and requested an opportunity to argue the matter on merits before the Commissioner (Appeals).

Upon review, the Tribunal found that the appeal had been dismissed solely based on non-compliance with Section 35 F, without giving the appellants an opportunity to address this issue. Considering the appellants' willingness to deposit the required amount and comply with the Commissioner (Appeals)' order, the Tribunal set aside the impugned order. The Tribunal directed the appellants to deposit the necessary amount within eight weeks, following which the Commissioner (Appeals) would hear the case on its merits and decide accordingly. It was emphasized that the order was subject to compliance with Section 35 F; failure to comply would result in the automatic dismissal of the appeal.

In conclusion, the Tribunal allowed the appeal, setting aside the impugned order and granting the appellants the opportunity to comply with Section 35 F. The appellants were directed to deposit the required amount within eight weeks, after which the Commissioner (Appeals) would proceed to hear the case on its merits and make a decision in accordance with the law. Compliance with Section 35 F was highlighted as crucial, with non-compliance leading to the automatic dismissal of the appeal.