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TMI Blog2014 (5) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... re-deposit. All the more, the Commissioner (Appeals) has not taken notice of the fact that the assessee has not even filed an application seeking for waiver of pre-deposit so as to enable him to consider the request under the first proviso to Section 35F of the Act - pre-deposit is a condition precedent for filing an appeal before the Commissioner (Appeals) and the filing of application for waiver of such deposit is also a condition precedent, without either of the above, the appeal could not have been entertained by the Commissioner (Appeals). However, keeping the above principle in mind, the facts of the present case should be considered. as the assessee has already paid the entire amount and the Revenue has not raised the said point befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner (Appeals) has taken up the appeal and decided the same on its merit and by order dated 18-4-2007, he allowed the appeal. The fact remains that at the time of filing of the appeal before the Commissioner (Appeals), the respondent/assessee has not filed any application for waiver of pre-deposit, which is a condition precedent for entertaining the appeal. As against the order of the Commissioner (Appeals), the Revenue filed a further appeal before the Customs, Excise and Service Tax Appellate Tribunal (in short CESTAT ). The CESTAT dismissed the appeal by rejecting the plea of the Revenue that the appeal before the Commissioner of Central Excise (Appeals) filed by the respondent/assessee should not have been entertained without co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. .. The provision of Section 35F uses the expression that where in any appeal, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under the Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied. By virtue of this provision, the pre-deposit is held to be mandatory. 5. However, in view of the first proviso to Section 35F of the Act, the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The filing of such application for waiver is mandatory, since in terms of Section 35F, such pre-deposit should be made. In this context, we may also refer to the provision of Section 35B wherein the person aggrieved may file an appeal to the Appellate Tribunal against a decision or order passed by the Commissioner (Appeals) under Section 35A of the Act. In the event an order for waiver of pre-deposit is granted and the Revenue is affected by that order, it may file an appeal under Section 35B(b) of the Act. In the absence of a specific order in the waiver application, a right of appeal by the Revenue under Section 35B(b) is taken away. 7. Mr. Jayachandran, learned counsel appearing for the respondent/assessee, relies upon a Division Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur opinion, it should be considered only with reference to the specific provisions of the Act. 10. In support of the above conclusion, we may also refer to the judgments of the Apex Court holding that when the statute contemplates a particular thing to be done, the authorities, who are expected to exercise the power under the specific provision, should strictly adhered to with those provisions. In Sharif-ud-Din v. Abdul Gani Lone, (1980) 1 SCC 403, the Apex Court has held that whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner (Appeals). However, keeping the above principle in mind, the facts of the present case should be considered. Even though the respondent/assessee did not file an application seeking for waiver of pre-deposit and the Commissioner (Appeals) took up the appeal itself for hearing and passed an order allowing the same, the Revenue, only while questioning that order before the CESTAT, has raised the said contention. The CESTAT, having noticed that on the facts of this case, the assessee has already paid the entire amount demanded by way of duty, rejected the contention of the Revenue as to the challenge that the Commissioner (Appeals) should have first considered the question as to whether an application for waiver of pre-deposit was made or n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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