9911796707
TMI Blog2017 (3) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... requested the Registry to fix both the appeals together on 2.12.2016. He further submitted that in spite of the request, the Registry did not list both the appeals together and on 2.12.2016 the appellant himself appeared and argued the case which was disposed of on that day. He further submitted that the Registry even did not inform that they are not listing the present appeal on 30.11.2016. In view of this, he prayed for the appeal which was dismissed for non-prosecution should be restored. In view of the reasons stated by the appellant, I allow the application and restore the appeal. After restoration of the appeal, I proceed to hear the appellant as well as the department on merit. 2. The learned AR has stated that this Tribunal for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s confirmed and aggrieved by the said order, appellant filed an appeal before the Commissioner but along with appeal, no application for waiver of pre-deposit was made nor any deposit was made and the Commissioner vide the impugned order has rejected the appeal being not maintainable. Aggrieved by the said order, appellant has filed the present appeal. 4. The appellant has stated that he has deposited the demanded amount under protest and the same is acknowledged to the Department by letter dated 30.03.2013 and the copy of the same was submitted to the appellate authority as per the demand. He further submitted that the samples discharged during the process are not excisable goods. So there is no question arises to levy excise duty a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ples cleared to in-house lab testing. Hence, I set aside the impugned order and allow the appeal with consequential relief." 5. On the other hand, the learned AR submitted that the learned Commissioner (Appeals) has not decided the issue on merit but he has merely rejected the appeal being not maintainable as the appellant has not filed any stay application before the Commissioner (Appeals) for waiver of pre-deposit. 6. After considering the submission of both the parties and the judgment cited by the appellant and considering that very small amount is involved in the present appeal, I am of the opinion that this case needs to be remanded back to the Commissioner with a direction to decide the appeal on merit without insisting for pre-dep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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