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TMI Blog2007 (1) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... al before him in terms of the impugned Order dated 31-8-06. Accordingly the demand in question may not be realised till hearing of the appeal on merit. There was admittedly delay in deposit of the ordered amount. Also he submitted that there is no provision in law either in Section 35A or in Section 35F, which permits the learned first Appellate Authority to dismiss the appeal for delay in deposit of the duty ordered in terms of the Stay Order. Such a dismissal would amount to denial of justice and the learned Commissioner (Appeals) in exercise of ancillary and incidental power of waiver of pre-deposit could have heard the appeal on merit Section 35, which gives the appellant right of appeal, does not speak that the learned Commissioner (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issal of appeal was justified. Accordingly, he supported the impugned Order passed by the Commissioner (Appeal-I), Central Excise, Kolkata. 3. Although stay matter was fixed for hearing, considering it was considered proper to dispose the appeal and save delay for hearing of the appeals by the learned Commissioner (Appeals) on merit. It has become necessary to find out whether the appellate authority has power to dismiss any appeal for delayed payment of the ordered amount in terms of the above Stay Order dated 21-4-06 followed by Variation Stay Order dated 31-5-06. If such order of dismissal of appeal in liminie persists, it would certainly frustrate justice. It is ordain of justice that if an appeal merited is dismissed at the thresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onditional right, the Hon ble Supreme Court .. to deal with the matter in the case of Vijay Prakash D. Mehta v. Collector of Customs reported in 72 STC 224 (SC) and that decision was rendered in the context of Section 129E of the Customs Act. 1962 where such conditional right was conferred on the aggrieved to make appeal, depositing the demand in question. The Hon ble Court held that Section 129E of the Customs Act, 1962 provided a conditional right of appeal in respect of an appeal against the duty demanded or penalty levied. Although the Section does not expressly provide for rejection of the appeal for non-deposit of the duty or penalty, yet it makes it obligatory on the appellant to deposit the duty or penalty pending the appeal, failin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise reported in 1996 (86) E.L.T. 472 (S.C.) that not to do an act required by justice on the ground of lack of power, would be manifest injustice and quite apart from inherent power that every Tribunal and Court constituted to do justice has in this respect. CEGAT (presently CESTAT) is clothed with express power under Rule 41 to make such Order as is necessary to secure the ends of justice. 8. Statutory power conferred by Section 35F of the Act on both the forums is the same. Of course, to secure ends of justice, Rule 41 of CESTAT (Procedure) Rules, 1982, is an added express grant for the Tribunal. However, statutory power conferred by Section 35F also carries with it the duty in proper cases to make such order for staying recovery) pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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