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TMI Blog2014 (5) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... 35F and waiver either wholly or partly is granted, of the pre – deposit requirement, appellate Commissioner gets jurisdiction to hear the appeal thereafter and on compliance by an appellant of the pre – deposit if any is ordered by the appellate Commissioner by an order passed under the first proviso to Section 35 F A pre – deposit (unless wholly waived) either in terms of Section 35 F open compliance with the orders passed under the first proviso to Section 35 F, is a condition precedent to the exercise of the substantive appellate jurisdiction of the Commissioner (Appeals), to adjudicate upon the appeal or an interlocutory proceeding therein such as grant of stay. An order of the appellate Commissioner under Section 35F of the 1944 Act re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t compliance report, falling which the appeal would be dismissed for failure of pre deposit. This order was passed by the appellate authority in a stay application filed by the assessee along with an appeal preferred against the Order in Original No. 62/Addl. Commissioner/Noida/2012-13 dated 19.2.2013. The adjudicating authority assessed service tax liability of Rs. 23,87,585/- besides interest and penalties as specified therein. 3. On a query as to whether this appeal is maintainable against the order of the Commissioner (Appeals), exercising discretion under Section 35 F of the Central Excise Act, 1944 in an application for waiver of pre deposit, ld. Counsel Shri S. K. Sarwal for the appellant submits that the order passed unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals and making orders under provisions of the Central Excise Act, 1944. 5. Section 83 of the 1994 Act enacts that certain specified provisions of the 1944 Act as in force and from time to time, shall apply, so far as may be, in relation to service tax as they apply in relation to a duty of excise,. One of the provisions of the 1944 Act made applicable to appeals preferred under the provisions of the 1944 Act, is Section 35 F of the 1944 Act. 6. Section 35 F of the 1944 Act is a provision which deals with deposit, pending appeal inter alia before the appellate Commissioner. This provision enjoins that where any appeal is preferred against a decision or order which relates to any duty demanded or penalty or interest levied, the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 35 F, is a condition precedent to the exercise of the substantive appellate jurisdiction of the Commissioner (Appeals), to adjudicate upon the appeal or an interlocutory proceeding therein such as grant of stay. An order of the appellate Commissioner under Section 35F of the 1944 Act read with Section 83 of the 1994 Act is not a proceeding strict senso under Section 85 of the 1994 Act. It is in the nature of preliminary step leading to the substantive adjudication process, dealing only with the issue of pre deposit and an application for waiver thereof. 9. On the aforesaid premise, the impugned order of the appellate Commissioner passed under the proviso to Section 35 F of the 1944 Act, directing the appellant to deposit 50% of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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