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TMI Blog2014 (12) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty to deposit with the adjudicating authority such duty demanded or the penalty levied. Unless such pre-deposit requirement is waived either completely or partially either unconditional or on such condition as may be imposed such requirement would have to be fulfilled. It was, in this background, that the Commissioner, while substantially waiving the pre-deposit requirement, insisted that against a duty demand of ₹ 17.59 lacs (rounded off) with matching penalty, the appellant should either deposit a sum of ₹ 3.50 lacs or offer bank guarantee for such sum. It was because that the appellant did not fulfill this requirement that the appeal came to be dismissed by the Commissioner. Even if the Tribunal was of the opinion t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal is considered for following substantial question of law: Whether Customs Excise and Service Tax Tribunal committed an error in allowing the assessee's appeal on merits when in such appeal the assessee had challenged the decision of the Commissioner dismissing its appeal for non-fulfillment of the predeposit requirement? 5. We may record brief facts from Tax Appeal No. 989 of 2014. A show cause notice was issued on 17.12.2008 against the respondent-assessee calling upon why CENVAT credit of ₹ 17,59,073/- wrongly taken and utilized on fake or bogus invoices as also of inadmissible invoices should not be recovered with interest and penalty. The adjudicating authority passed an order dated 30.03.2009 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, the appeal would automatically stand dismissed for non compliance of the condition. The appellants shall produce evidence of compliance. The case is listed for hearing on 16.09.2009 at 11.30 hrs. for evidence. 6. When despite sufficient opportunities, the appellant did not fulfill the pre-deposit requirement, the Commissioner dismissed the appeal only on this ground by his order dated 15.09.2009. Against such order, the appellant preferred further appeal before the Customs Excise and Service Tax Tribunal. The Tribunal, in the impugned judgement dated 09.12.2013 allowed the appeal in its entirety. The Tribunal recorded that the issue is covered by the judgement of the High Court in case of Prayagraj Dyeing Printing Mills Pvt. Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue's stand has been that the issues were not covered by the Judgement of this Court in case of Prayagraj Dying Printing Mills Pvt. Ltd. vs. Union of India (supra). In similar other cases, when such contention was urged, this Court, in view of the concession of the counsel for the revenue recorded by the Tribunal, permitted the revenue to approach the Tribunal for rectification or recall. In any case, according to the counsel, the Tribunal could not have expanded the scope of appeal. 8. Section 35F of the Central Excise Act, 1944 pertains to deposit pending appeal of duty demanded or penalty levied. The said provision provides inter alia that where in any appeal, the decision or order appealed against relates to any duty demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant did not fulfill this requirement that the appeal came to be dismissed by the Commissioner. When the appellant therefore filed further appeal before the Tribunal, the question before the Tribunal was, whether the Appellate Commissioner committed an error in imposing such condition and subsequently dismissing the appeal for the appellant not fulfilling such a condition. Unless and until the Tribunal held that such condition was illegally or erroneous and set aside the same the question of examining merits of the appellant's claim did not arise. Even if the Tribunal was of the opinion that the entire pre-deposit requirement was to be waived in view of a strong case of the assessee or any other such ground, the Tribunal ought an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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