2023 (5) TMI 857 - AT - Central Excise

Refund of amount of pre-deposit made by debiting the electronic credit ledger maintained under GST - Section 35F of Central Excise Act, 1944 - HELD THAT - It is quite evident that the appellant has now deposited the amount of pre-deposit as required under Section 35F. Appellant has fulfilled the requirement of predeposit in the manner as Commissioner (Appeals) would have accepted it. In para 3 of his order, Commissioner (Appeals) has noted that earlier the appellant had paid the pre-deposit vide DRC-03 ARN AD2712210187079 dated 10.12.2021. Even though the Commissioner (Appeals) could have taken this amount deposited by the appellant by way of above referred debit entry as a payment made under Section 35F, he chose to reject the appeal on a technical ground. Appellant should approach the concerned authorities with proper application as prescribed seeking refund of this amount and the said application needs to be dealt with in accordance with law - Taking note of the above facts and that the amount has now been deposited by the appellant, it is opined that the conditions of Section 35F of Central Excise Act, 1944 are complied with and the matter needs to be considered by the Commissioner (Appeals) on merits. This matter is remanded back to the Commissioner (Appeals) for passing decision on merits - Appeal allowed by way of remand.

Issues:
1. Non-compliance with mandatory pre-deposit under Section 35F of the Central Excise Act, 1944.
2. Appeal dismissal by Commissioner (Appeals) solely based on non-compliance.
3. Application for early hearing of appeal.
4. Deposit of the required pre-deposit amount by the appellant.
5. Refund request for the earlier pre-deposit made by the appellant.

Issue 1: Non-compliance with mandatory pre-deposit under Section 35F of the Central Excise Act, 1944:
The appeal was directed against an order by the Commissioner of CGST & Central Excise & Customs (Appeals Thane) for non-compliance with the mandatory pre-deposit requirement under Section 35F. The appellant had paid 7.5% of the demand confirmed, but the Commissioner (Appeals) rejected the appeal, citing non-compliance with the pre-deposit provision.

Issue 2: Appeal dismissal by Commissioner (Appeals) solely based on non-compliance:
The Commissioner (Appeals) dismissed the appeal without deciding on the merits due to the appellant's failure to comply with the pre-deposit requirement under Section 35F of the Central Excise Act. The dismissal was solely based on this non-compliance, leading to the appeal being rejected as not maintainable.

Issue 3: Application for early hearing of appeal:
The appellant filed an application for early hearing of the appeal, which was found to have merits and was allowed. The matter was then heard, and observations were made regarding the need for the appellant to make a deposit of the differential amount and provide a copy of the challan.

Issue 4: Deposit of the required pre-deposit amount by the appellant:
The appellant subsequently deposited the required pre-deposit amount as mandated under Section 35F of the Central Excise Act. The appellant fulfilled this requirement in the manner acceptable to the Commissioner (Appeals), who had noted a previous payment made by the appellant but chose to reject the appeal on technical grounds.

Issue 5: Refund request for the earlier pre-deposit made by the appellant:
After making the required pre-deposit, the appellant sought a refund of the earlier pre-deposit made. The Tribunal advised the appellant to approach the relevant authorities with a proper application for the refund, which should be processed in accordance with the law.

In conclusion, the Tribunal remanded the matter back to the Commissioner (Appeals) for a decision on the merits, considering that the appellant had now complied with the pre-deposit requirement. The Commissioner (Appeals) was instructed to verify the challan of the deposit payment and issue a decision on the merits within three months from the date of the order.

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