2017 (3) TMI 350 - AT - Central Excise

Restoration of appeal - appeal was rejected being not maintainable at the threshold stage of admission itself as the appellant failed to fulfill the condition of pre-deposit by not filing the waiver application as is prescribed in this regard u/s 35F of the CEA - Held that - considering that very small amount is involved in the present appeal, this case needs to be remanded back to the Commissioner with a direction to decide the appeal on merit without insisting for pre-deposit - appeal allowed by way of remand.

Summary

Issues:
1. Restoration of appeal dismissed for non-prosecution.
2. Disposal of appeal on merits.
3. Maintainability of appeal due to failure to fulfill pre-deposit condition.
4. Decision on merit without pre-deposit requirement.

Issue 1 - Restoration of Appeal:
The appellant filed a Restoration of Appeal (ROA) seeking reinstatement of an appeal dismissed for non-prosecution by the Tribunal. The appellant argued that a similar appeal was pending with identical issues and requested both appeals to be listed together. Despite this, the Registry did not list the present appeal, leading to its dismissal. The appellant's request for restoration was allowed by the Tribunal, and the appeal was reinstated for further proceedings.

Issue 2 - Disposal of Appeal on Merits:
The learned Authorized Representative (AR) contended that since a different appeal on the same issue had been disposed of previously, the present appeal could be decided on similar terms. Consequently, the Tribunal proceeded to hear and decide the appeal on its merits.

Issue 3 - Maintainability of Appeal:
The appeal was directed against an order by the Commissioner rejecting the appellant's appeal for not fulfilling the pre-deposit condition under Section 35F of the Central Excise Act. The Commissioner did not delve into the merit of the case due to this procedural non-compliance. The appellant argued that the demanded amount was deposited under protest, and the issue of excisability of the samples drawn for testing was raised, citing favorable Tribunal judgments. The appellant contended that no excise duty should be levied on such samples.

Issue 4 - Decision on Merit without Pre-deposit Requirement:
The Tribunal, after considering submissions from both parties and the cited judgments, decided to remand the case back to the Commissioner. The Tribunal directed the Commissioner to decide the appeal on merit without insisting on the pre-deposit condition, given the insignificance of the amount involved in the appeal. The Commissioner was instructed to provide the appellant with an opportunity to be heard and present any supporting documents.

In conclusion, the Tribunal allowed the restoration of the appeal dismissed for non-prosecution, proceeded to hear the appeal on its merits, and remanded the case back to the Commissioner for a decision on merit without requiring pre-deposit, emphasizing the importance of affording the appellant a fair opportunity to present their case.