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TMI Blog2018 (5) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be read in context of Section 35 (1) as it has got no application. Once the appeal has been filed within the time limit the same cannot be dismissed on the ground of late payment of pre deposit amount. Matter remanded to Commissioner (Appeals) to hear the case on merits - appeal allowed by way of remand. - ST/85749/2015 - A/86003/2018 - Dated:- 13-4-2018 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri Sagar Shah, C.A. with, Shri Kaustubh Khairnar, Advocate for Appellant Shri Dilip Shinde, Asstt. Commr. (A.R) for respondent Per: Ramesh Nair The Appeal has been filed by the Appellant against the Order-inappeal passed by the Commissioner (Appeals). The Appellate Commissioner wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 35F it is amply clear that the reference of Section 35 (1) is given only for the purpose of specifying as to for which kind of appeals the present section would be applicable. Under Section 35F there is no time limit to make pre deposit but the Appellate Authority cannot entertain the appeal unless predeposit is made. Section 35 (1) only provides for filing of appeal within stipulated time before Commissioner (Appeals). The Appeal was correctly filed within 60 days and thus there is no default under section 35 (1) of the CEA. 3. Shri Dilip Shinde, Ld. Asstt. Commr. (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. We have carefully considered the submissions of both sides. The relevant Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal - (i) under sub-section (1) of section 35, unless the appellant has deposited seven and a half per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the [Principal Commissioner of Central Excise or Commissioner of Central Excise]; (ii) against the decision or order referred to in clause (a) of subsection (1) of section 35B, unless the appellant has deposited seven and a half per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against; (iii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntext of Section 35 (1) as it has got no application. The non- payment of predeposit is curable defect. Any appeal can be entertained only when it is filed. Obviously the question of entertaining the appeal comes at the time of filing of appeal which has to be filed within stipulated period. Once the appeal has been filed within the time limit the same cannot be dismissed on the ground of late payment of pre deposit amount. Further in the present case the Appellant has made the pre-deposit as required under Section 35F although after filing of appeal. However this cannot be a ground to dismiss the appeal. We are thus of the view that the reasoning adopted by the Commissioner (Appeals) is not correct. We thus set aside the impugned order and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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