2022 (6) TMI 162 - AT - Central Excise

Maintainability of appeal - non-compliance with the mandatory provision relating to pre-deposit in terms of section 35F of the Central Excise Act 1944 read with section 83 of the Finance Act - barred by time limitation or not - HELD THAT - When the appellant had clearly stated that it could not make the pre-deposit online and therefore, had sought permission to make the pre-deposit through a bank draft, the Commissioner (Appeals) should have considered this request of the appellant. It has also been brought to our notice that the appellant subsequently made the pre-deposit on April 12, 2021, as is also clear from page-57 of the appeal memo. This fact may be verified by the Commissioner (Appeals) and in case the deposit has been made, he may proceed to decide the application filed by the appellant for condonation of delay. In case, the deposit has not been made, the Commissioner (Appeals) may grant one more opportunity to the appellant to make the pre-deposit. The order dated March 02, 2021 passed by the Commissioner (appeals) is, accordingly, set aside - Appeal allowed.

Issues: Appeal against order dismissal due to non-compliance with pre-deposit provision and limitation period for filing appeal.

Non-Compliance with Pre-Deposit Provision:
The appeal was filed challenging an order, but the Commissioner (Appeals) dismissed it due to the appellant's failure to comply with the mandatory pre-deposit requirement under section 35F of the Central Excise Act 1944 read with section 83 of the Finance Act. The appellant did not deposit the required 7.5% amount at the time of filing the appeal, even after being requested to do so. The delay condonation application filed was not under proper authorization, lacking the necessary vakalatnama from the appellant. The Commissioner found that the pre-deposit was a prerequisite for entertaining the appeal, and since it was not fulfilled, the appeal could not be considered complete or entertained.

Limitation Period for Filing Appeal:
The appellant filed the appeal after a delay of two months and twenty-two days from the date of receiving the order, exceeding the two-month limitation period. The Commissioner (Appeals) has the authority to condone such delay for an additional one month if a satisfactory cause is shown. However, the appellant failed to make the pre-deposit even after the deadline extension, leading to the dismissal of the appeal as being barred by limitation. The Commissioner (Appeals) highlighted the importance of complying with the statutory timelines and pre-deposit requirements for filing appeals in tax matters.

Consideration of Appellant's Request:
The appellant communicated that the system did not allow online pre-deposits, requesting permission to make the pre-deposit through a bank draft. However, the Commissioner (Appeals) did not address this request and proceeded to dismiss the appeal solely based on non-compliance with the pre-deposit provision. The Tribunal emphasized that the Commissioner should have considered the appellant's request and given an opportunity to rectify the non-compliance. It was noted that the appellant eventually made the pre-deposit after the appeal dismissal, suggesting that the Commissioner should verify this and proceed with the condonation of delay application if the deposit was made or grant another chance for compliance if not.

Conclusion:
The Tribunal set aside the Commissioner (Appeals) order and directed a reevaluation of the matter based on the observations made. The Commissioner was instructed to consider the appellant's request for making the pre-deposit through a bank draft, verify the subsequent deposit made by the appellant, and grant another opportunity for compliance if necessary. This decision aimed to ensure fair consideration of the appellant's circumstances and adherence to procedural requirements while addressing the appeal's dismissal.

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