2013 (1) TMI 144 - AT - Central Excise

Waiver of pre-deposit - Stay of recovery - Non-compliance with Section 35F - Pre-deposit was not made within the stipulated period - Assessee s appeal against the Order-in-Original came to be rejected - Assessee pleaded a strong prima facie case on merits as well as on the ground of limitation also - Held that - After perusing the records and have not been able to discern a strong prima facie case for the appellant. The plea of limitation is debatable. Direct assessee to predeposit 25% of the duty amount. Impugned order is set aside and this appeal is allowed by way of remand

Summary

Issues involved:
- Application for waiver and stay of adjudged dues including Central Excise duty
- Appeal against appellate Commissioner's order for non-compliance with Section 35F of the Central Excise Act
- Plea for predeposit of 25% of the duty amount

Analysis:
1. The application before the Appellate Tribunal sought waiver and stay of adjudged dues, specifically a Central Excise duty amount. The applicant, represented by counsel, did not request a personal hearing. The Tribunal reviewed written submissions by the applicant's counsel and the Superintendent (AR). Upon perusal, the Tribunal decided that the appeal needed final disposal without predeposit, leading to the consideration of the appeal itself.

2. The appeal in question was filed by the assessee against the appellate Commissioner's order, which dismissed their appeal due to non-compliance with Section 35F of the Central Excise Act. The original authority had confirmed a demand of Central Excise duty and interest, along with a penalty against the assessee. The Commissioner (Appeals) directed the appellant to predeposit 50% of the duty, which was not done within the stipulated period, resulting in the rejection of the appeal. Hence, the present appeal was filed by the assessee challenging this decision.

3. In the written submissions, the appellant expressed difficulty in predepositing 20% of the duty amount but argued for a strong prima facie case on merits and limitation grounds. The Superintendent (AR) opposed the plea for a strong prima facie case, and the Tribunal, after reviewing the records, did not find a strong case for the appellant. The issue of limitation was considered debatable. Consequently, the Tribunal directed the appellant to predeposit 25% of the duty amount within six weeks to enable the lower appellate authority to address the appeal on its merits, without further predeposit requirements. The Tribunal clarified that no conclusive view was expressed on the case's issues.

4. The Tribunal set aside the impugned order and allowed the appeal by remanding it to the Commissioner (Appeals) for disposal on merits without insisting on predeposit, subject to the condition of predepositing 25% of the duty amount within the specified period. The Commissioner (Appeals) was instructed to pass a speaking order on all issues after providing a reasonable opportunity for the assessee to be heard. The stay application was also disposed of in this process.