2014 (12) TMI 362 - AT - Central Excise

Rectification of mistake - Appeal dismissed for non compliance order - Held that - While considering the appeal against the final order of the Commissioner (Appeals) dismissing the appeal for failure of pre-deposit the Tribunal shall not adjudicate upon the merits of the appeal and if the order of pre-deposit passed by the Commissioner (Appeals), in the given facts and circumstances, is erroneous, the Tribunal is required to set aside the order of the appellate authority and remit the matter to the Lower Appellate Authority for de-novo consideration, after passing appropriate order as to pre-deposit and while considering appeal against the order of the Commissioner (Appeals) dismissing the appeal for failure of pre-deposit, the Tribunal is authorised to consider the correctness appropriateness of the pre-deposit order passed by the Commissioner (Appeals), the non-compliance whereof resulted in dismissal of the appeal by that authority. - Matter remanded back - Following decision of Girnar Transformers 2014 (2) TMI 1132 - CESTAT NEW DELHI - Rectification allowed.

Issues:
1. Rectification of mistake apparent from records in the Final Order passed by the Tribunal dismissing the appeal.
2. Authority of the Tribunal to consider the correctness of the pre-deposit order passed by the Commissioner (Appeals) and its impact on the dismissal of the appeal.
3. Interpretation of Section 35F of the Central Excise Act, 1944 regarding pre-deposit requirements.
4. Jurisdiction of the Tribunal in cases of appeals dismissed for failure of pre-deposit by the Commissioner (Appeals).

Analysis:

1. The ROM application was filed seeking rectification of a mistake apparent from records in the Final Order passed by the Tribunal dismissing the appeal. The Commissioner (Appeals) had dismissed the appeal for non-compliance with the provisions of Section 35F of the Central Excise Act, 1944, due to the appellant's failure to make the pre-deposit within the stipulated period as per the stay order. The Tribunal upheld this dismissal, stating that the Commissioner (Appeals) had the authority to direct pre-deposit, and such an order was not beyond jurisdiction or a nullity.

2. The appellant argued that a subsequent judgment by the Tribunal in another case had taken a contrary view, allowing the Tribunal to consider the correctness of the pre-deposit order passed by the Commissioner (Appeals) when an appeal is dismissed for failure of pre-deposit. The appellant contended that the Tribunal could modify the pre-deposit order and direct the Commissioner (Appeals) to decide on the appeal's merits without insisting on pre-deposit. The Tribunal agreed with this argument, acknowledging the mistake in the previous final order and recalled it.

3. The Tribunal highlighted the provisions of Section 35F of the Central Excise Act, 1944, which require pre-deposit before an appeal can be heard. The Tribunal noted that the Commissioner (Appeals) had dismissed the appeal for non-compliance with this provision without delving into the case's merits. The Tribunal, in line with the appellant's argument, recognized the need to review the correctness of the pre-deposit order and remit the matter to the Commissioner (Appeals) for de-novo consideration without insisting on pre-deposit.

4. The Tribunal addressed the jurisdictional aspect, emphasizing that the Lower Appellate Authority's order directing pre-deposit is not appealable. However, in light of the contrary view taken in another case by the Tribunal, the current judgment recognized the Tribunal's authority to consider the appropriateness of the pre-deposit order passed by the Commissioner (Appeals) when an appeal is dismissed for failure of pre-deposit. The Tribunal's decision to recall the final order and remand the matter for a decision on merits without pre-deposit was based on this interpretation.

This detailed analysis of the judgment provides a comprehensive understanding of the issues involved and the Tribunal's decision regarding the rectification of the mistake apparent from records in the Final Order passed by the Tribunal.

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