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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 ..... he said order, the appellant/assessee was directed to deposit 50% of the adjudicated tax liability within 15 days from the date of receipt of the order and submit 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g orders under this section, the appellate Commissioner shall exercise the same powers and follow the same procedure as he exercises and follows in hearing appeals 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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