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TMI Blog2014 (5) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, which requires an assessee to pre-deposit the amount demanded by the revenue and empowers the Commissioner (Appeals) to waive the amount so demanded, is integral to the scheme of appellate powers conferred by Section 35 and Section 35A of the Act. Section 35F of the Act commences with the words, “... where in any appeal under this Chapter ...” thereby leaving no ambiguity that power under Section 35F can only be exercised when an appeal has already been filed under Chapter VIA. Section 35F of the Act thus can only be invoked if an appeal has already been filed. We, therefore, hold that an order passed by the Commissioner (Appeals) exercising power under Section 35F, is an order passed in an appeal filed under Section 35 read wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er under Section 35(1)(b) of the Act or any other provision. Section 35(1)(b) of the Act provides for an appeal against an order passed under Section 35A of the Act. An order passed under Section 35F is an order passed in exercise of powers independent of powers conferred by Section 35A of the Act and is, therefore, not appealable under Section 35(1)(b) of the Act. It is further submitted that the Madras High Court has already held in Hindustan Lever Ltd. v. Commissioner of Central Excise (Appeals), Chennai, 2006 (202) E.L.T. 591 (Mad.) that an order passed under Section 35F of the Act is not appealable. 4. Counsel for the respondents submits that an appeal is filed before a Commissioner (Appeals) under Section 35 of the Act. The procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shown at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing : Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. 35A. Procedure in appeal. - (1) The Collector (Appeals), shall give an opportunity to the appellant to be heard, if he so desires. (2) The Collector (Appeals) may, at the hearing of an appeal, allow an appellant to go into any ground of appeal not specified in the grounds of appeal, if the Collector (Appeals) is satisfi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed by him to the appellant, the adjudicating authority and the Collector of Central Excise. 35B. Appeals to the Appellate Tribunal. - (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order - (a) a decision or order passed by the Commissioner of Central Excise as an adjudicating authority; (b) an order passed by the Commissioner (Appeals) under Section 35A; (c) an order passed by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) (hereafter in this Chapter referred to as the Board) or the Appellate Commissioner of Central Excise under Section 35, as it stood immediately before the appointed day; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority, may file an appeal under Section 35 of the Act. Section 35A of the Act enumerates the procedure for filing and deciding an appeal. The power to entertain and decide an appeal and as a consequence to pass final and interim orders flows from Section 35 and Section 35A of the Act. Section 35F of the Act, which requires an assessee to pre-deposit the amount demanded by the revenue and empowers the Commissioner (Appeals) to waive the amount so demanded, is integral to the scheme of appellate powers conferred by Section 35 and Section 35A of the Act. Section 35F of the Act commences with the words, ... where in any appeal under this Chapter ... thereby leaving no ambiguity that power under Section 35F can only be exercised when an a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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