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TMI Blog2015 (1) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... e taken up together for disposal. 2. The appellants are engaged in the manufacture of Injection Moulding components classifiable under Heading 3923 of the Central Excise Tariff Act, 1985. The dispute relates to denial of Cenvat credit on HIPS and GPPS and demand of Cenvat credit of Rs. 50,12,830/- along with interest and penalty for the period from May, '05 to Oct.'09. Commissioner (Appeals) by a stay order directed the appellant to make a pre-deposit of Rs. 25,00,000/-. The appellant filed an application for modification of the stay order. The Superintendent of Central Excise (Appeals) by letter dated 10.07.2013 informed that due to non-compliance of the stay order, the appeal is dismissed automatically on 30.06.2013. 3. The main content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal to the Commissioner (Appeals). Section 35A of the said Act provides procedure in appeal. Sub-section (3) of Section 35A of the said Act provides 'the Commissioner (Appeals) shall, after making such further inquiry as may be necessary, pass such order as he thinks just and proper confirming, modifying or annulling the decision or order appealed against'. Sub-section (4) of Section 35A provides 'the order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for the decision'. Section 35 F of the Central Excise Act, 1944 provides that 'where in any appeal under this Chapter, the decision or order appealed against relates to any duty d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to comply with the stay order, the Commissioner (appeals) under Section 35A of the Act shall pass an order disposing of the appeal stating the reasons for the decision. The appeal may be dismissed for the reasons of non-compliance of stay order. In our considered view, the Commissioner (Appeals) cannot dispose of the appeal by stay order issued under 1st proviso to Section 35F of the Act. In that case, Section 35A of the Act would become nugatory. In the present case, the appeal was disposed of by the Stay Order dated 10.06.2013, which is contrary to provision of Section 35A of the Act. 8. The other aspect of this matter is that the Commissioner (Appeals) by Stay Order dated 10.06.2013 directed to a pre-deposit an amount on or before 29.06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal in the case of Lacure Pharmaceuticals Ltd. (supra), which was upheld the Hon'ble Supreme Court. In that case, the Tribunal dismissed the appeal for non-compliance of the stay order. It is seen that the Tribunal by Stay Order dated 18.12.2008 directed the assessee to pre-deposit the amount, and the appeal was dismissed by Final Order dated 23.04.2009 for non-compliance of the said stay order. The case law relied upon by the learned Authorised Representative would, perhaps, help the case of the appellant. In the present case, we find that the Commissioner (Appeals) dismissed the appeal in the same stay order. But, the case law relied upon by the learned Authorised Representative, where the Tribunal passed stay order and subsequently by fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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