2023 (5) TMI 1192 - HC - Central Excise

Maintainability of appeal - appeal dismissed for non-compliance of the mandatory requirement of Section 35-F of the Act with respect to pre-deposit to maintain the statutory appeal - HELD THAT - While there is no dispute that the right of appeal claimed by the appellant before the Tribunal was conditional inasmuch as such appeal may be maintained only upon making pre-deposit prescribed by the statute, at present, learned counsel for the appellant prays for some time to make the pre-deposit to maintain the appeal before the Tribunal. Undisputedly, the appellant is a statutory board constituted by the Government of U.P. In such circumstance, upon query made, Sri Amit Mahajan, learned counsel for the revenue fairly states, if the present appellant were to make good the deposit within a period of one month from today, the revenue would have no objection to the impugned order being set aside so as to allow the appellant to press its appeal on merits. In view of such statement made, no useful purpose would be served in seeking to decide the legal issues being raised - Appeal disposed off.

Summary

Issues involved: Delay Condonation Application, Appeal under Section 35-G of the Central Excise Act, 1944, Non-compliance of Section 35-F regarding pre-deposit

Delay Condonation Application:
The appellant filed a delay condonation application for a delay of 147 days in filing the present appeal. The High Court allowed the application subject to the payment of a cost of Rs. 10,000 to the High Court Legal Services Committee by a specified date, thereby condoning the delay.

Appeal under Section 35-G of the Central Excise Act, 1944:
The present appeal was filed under Section 35-G of the Central Excise Act, 1944, arising from an order passed by the Customs, Excise & Service Tax Appellate Tribunal. The Tribunal had rejected the appeal filed by the appellant against the order passed by the Commissioner (Appeals), CGST and Central Excise, Allahabad, due to non-compliance with the mandatory requirement of Section 35-F regarding pre-deposit to maintain the statutory appeal.

Non-compliance of Section 35-F regarding pre-deposit:
The only reason for the dismissal of the appeal by the Tribunal was the non-compliance with the mandatory requirement of Section 35-F of the Act concerning pre-deposit to maintain the statutory appeal. The appellant, a statutory board constituted by the Government of U.P., requested time to make the pre-deposit. The revenue counsel stated no objection to setting aside the impugned order if the appellant made the deposit within a specified period, allowing the appeal to be heard on merits. The High Court disposed of the appeal with the condition that if the appellant pays the cost and deposits the pre-deposit amount by a specified date, the impugned order would be set aside, and the appeal would revive before the Tribunal for a hearing on merits.