2022 (1) TMI 1068 - AT - Central Excise

Maintainability of appeal - non-compliance of mandatory provision regarding pre-deposit in terms of section 35F of Central Excise Act, 1944 - HELD THAT - Admittedly, the appellant had not filed the amount of pre-deposit (₹ 11,400/-) at the time of filing his initial appeal before Commissioner (Appeals), against the aforementioned Order in Original. In terms of section 35 F of Central Excise Act, 1944 the appeal before Commissioner (Appeals) shall not be entertained by Commissioner (Appeals) unless the appellant deposits 7 % of the duty in dispute. The use of word shall in the said provision definitely makes the provision mandatory in nature - the Commissioner (Appeals) has committed no error while rejecting the appeal on the ground of non-compliance of the aforesaid provision vide the Order dated 3rd August, 2021. Simultaneously, it is also apparent on record that the appellant made the compliance of the said provision, subsequently. However, still the opportunity of being heard for disposing his appeal on merits was not considered by Commissioner (Appeals). The letter bearing No.2065/2021 dated 27.07.2021 as is found annexed on the record of this appeal shows that the Commissioner (Appeals) has not re-considered the issue despite that non-compliance of Section 35F was a procedural lapse and that the same has been made good by the appellant - In the present case, since the procedural lapse / the defect stands already cured by the appellant. This is deemed a fit case to be heard by Commissioner (Appeals) on its merit. Matter remitted back to the Commissioner (Appeals) to consider the merits of the appeal for a fresh adjudication - appeal allowed by way of remand.

Issues:
1. Non-compliance of mandatory provision regarding pre-deposit in terms of section 35F of Central Excise Act, 1944.
2. Appeal dismissal by Commissioner (Appeals) for non-compliance of pre-deposit.
3. Request for adjustment of pre-deposit due to high surge in Corona Pandemic.
4. Failure of Commissioner (Appeals) to consider subsequent appeal after compliance with pre-deposit.
5. Legal interpretation of section 35F and the mandatory nature of pre-deposit.

Issue 1: Non-compliance of mandatory provision regarding pre-deposit in terms of section 35F of Central Excise Act, 1944:
The judgment addresses the non-compliance of the mandatory provision of pre-deposit under section 35F of the Central Excise Act, 1944. The Commissioner (Appeals) dismissed the appeal due to the appellant's failure to deposit the required amount at the time of filing the initial appeal. The use of the word "shall" in the provision signifies its mandatory nature, leading to the rejection of the appeal based on non-compliance.

Issue 2: Appeal dismissal by Commissioner (Appeals) for non-compliance of pre-deposit:
The appellant's appeal was dismissed by the Commissioner (Appeals) for not adhering to the pre-deposit requirement as mandated by section 35F. Despite subsequent compliance by the appellant, the Commissioner did not provide an opportunity for a hearing on the merits of the appeal, highlighting a procedural lapse in the adjudication process.

Issue 3: Request for adjustment of pre-deposit due to high surge in Corona Pandemic:
The appellant had requested the Commissioner (Appeals) to adjust the pre-deposit amount against other pending deposits, citing difficulties caused by the high surge in the Corona Pandemic. However, this request was not considered, leading to the dismissal of the appeal initially.

Issue 4: Failure of Commissioner (Appeals) to consider subsequent appeal after compliance with pre-deposit:
Despite the appellant's subsequent compliance with the pre-deposit requirement, the Commissioner (Appeals) did not re-consider the appeal for a hearing on its merits. The judgment emphasizes that procedural lapses should not impede substantial justice, and the fundamental principle of natural justice necessitates an opportunity for a hearing and a decision on the merits.

Issue 5: Legal interpretation of section 35F and the mandatory nature of pre-deposit:
The judgment clarifies the legal interpretation of section 35F, highlighting its mandatory nature for entertaining appeals before the Commissioner (Appeals). While acknowledging the appellant's compliance post-dismissal, the judgment emphasizes the importance of providing an opportunity for a fresh adjudication on the merits, underscoring the principle of procedural lapses not overshadowing substantial justice.

In conclusion, the judgment remands the matter back to the Commissioner (Appeals) for a fresh adjudication on the merits of the appeal, allowing the appeal by way of remand to ensure procedural fairness and adherence to the principles of natural justice.

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