9911796707
TMI Blog2010 (10) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... g the decision made by the Commissioner of Central Excise (Appeals), the same has to be decided on merits. Admittedly the appeal has been preferred by the department against the order which ends in favour of the assessee. Such an order cannot be set aside on extraneous grounds than on merits, especially when no plea has been taken on the ground of maintainability. the proviso to Section 35-F of the Act, gives ample power to the Commissioner of Central Excise and to the Appellate Tribunal to waive the pre-deposit. When such a power is given enabling an applicant to prefer appeal to the Tribunal, nothing prevents the Tribunal from excising such power in favour of the assessee concerned, more so, when he is armed with an order passed by the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich no appeal was filed by the Department before the Tribunal? 6. Whether the absence of an order under Section 35-F be presumed to be made when the appeal itself was taken up and decided on merits following the decisions of the Hon'ble Supreme Court?" 2. The brief facts of the case are as follows : The appellant/assessee has been engaged in the manufacture of MS rounds/CTD bars, MS flats and MS angles. During the years 2004-2005 and 2005-2006, the assessee availed exemption under Notification No. 8/2003 dated 1-3-2003. After crossing the exemption limit as per the Notification, the assessee paid the duty after availing Cenvat credit on the goods. The department issued two show cause notices for the above said two years prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed for the year 2004-2005, the department has not chosen to file an appeal, but however has filed an appeal for the year 2005-2006 alone. It is further seen from the records that even in the grounds of appeal filed before the Tribunal, no plea has been taken on the ground that no proper notice has been served on the department and the appeal is not maintainable before the commissioner of Central Excise (Appeals) while deciding the same on merits, Without complying with the condition of pre-deposit. Only during the course of arguments, those points were made by the department's representative stating that inasmuch as the Commissioner of Central Excise (Appeals) has not decided the issue on pre-deposit, he ought not to have passed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment and that is the reason why the Commissioner of Central Excise (Appeals) decided the matter on merits. Even while deciding the appeal on merits, the department has not chosen to appear and raise any objection. Further, while filing an appeal before the Tribunal on merits, no ground has been taken that the department was not heard and the non-compliance of pre-deposit, which resulted due to the failure of the Commissioner of Central Excise (Appeals) in deciding the said application filed for wavier, would require the appeal deciding on merits as finality. A further reading of Section 35-F of the Act, would show that a discretion is given to the authorities to waive the condition of pre-deposit. The object of the said condition is to put ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
