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TMI Blog2004 (6) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... earing both sides, I am of the view that the appeals require to be finally disposed of at this stage. Accordingly, after dispensing with pre-deposit under Section 35F of the Central Excise Act, I take up the appeals for final disposal. 2. Appeal No. E/452/04 is against Order-in-Appeal No. 349/2003, dated 23-12-03 of the Commissioner (Appeals), Salem. Appeal No. E/504/04 is against Order-in-Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication under Section 35F for waiver of pre-deposit and stay of recovery, along with his appeal. Such a strict view does not appear to be consistent with the legislative intent underlying Section 35F. The Section reads as under :- Section 35F. Deposit, pending appeal, of duty demanded or penalty levied. - Where in any appeal under this Chapter, the decision or order appealed against relates to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson appealing to the Commissioner (Appeals) or to this Tribunal is liable to deposit with the adjudicating authority the duty demanded and/or the penalty levied. This can be done by the appellants pending the appeal also. Section 35F nowhere stipulates that an application under the first proviso for waiver of pre-deposit should be filed along with the appeal. Such application could be filed subse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, as is apparent from the records, the Commissioner (Appeals), before dismissing the assessee s appeal, did not give them any opportunity to show cause why the appeal should not be rejected for want of compliance with Section 35F. Had such opportunity been given, the party could have either expunged the Modvat credit and deposited the penalty amount or applied for waiver of pre-deposit in r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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