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TMI Blog2018 (8) TMI 1596X X X X Extracts X X X X X X X X Extracts X X X X ..... n admitted for hearing - In the instant case, as found from the order of the Commissioner (Appeals), no merit concerning tax liability of the appellant has been discussed and the appeal filed by him was rejected as not maintainable on ground of short-payment of pre-deposit which, in reality was not existing since the entire tax liability was met but might not have been brought to the notice of the Commissioner (Appeals). Since this Appellate Tribunal cannot go beyond the order of the Commissioner (Appeals) to scrutinize the merit of the decision of the adjudicating authority, it is a fit case which necessitate re-adjudication by the Commissioner (Appeals) as under Section 35A (3), he is also empowered to make such further enquiry as may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner (Appeals) made the following observations in Para 6 7 of his order which are reproduced as here under for ready reference: Before going into the merits of the case, I would like to discuss that the appellants in their ST Form, in the column provided for details of mandatory pre-deposit made as per Section 35F of the Central Excise Act, 1944 (CEA 1944) have declared that Rs.75,219/- being 7.5% pre-deposit. ₹ 51,757/- paid under challan dated 15.11.2015 and ₹ 23,462/- paid on 23.12.2016. 6.1 The present appeal is in respect of confirmed demand of ₹ 10,33,005/-. The mandatory pre-deposit as per the statutory provisions of Section 35F of Central Excise Act, 1944 for filling the appeal should be 7.5% of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner (Appeals) and the last component of the duty demand of ₹ 4,81,248/- was paid on 9th January 2017 i.e. much before commencement of the hearing of the appeal before the Commissioners (appeals) for which pre-deposit was not required to be made. In response to such submissions learned AR for the Department indicated that such fact of payment of tax was not brought to the notice of the learned Commissioner (Appeals) since the order is silent about the same and speaks about making of pre-deposit of ₹ 75,219/- against ₹ 77,478/- as 7.5% of the duty demand of ₹ 10,33,005/- and therefore, there was short-payment as noticed by the Commissioner who right-fully rejected the appeal on the ground of its maintaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of pre-deposit which, in reality was not existing since the entire tax liability was met but might not have been brought to the notice of the Commissioner (Appeals). 6. Section 35B (b) empowers the Appellate Tribunal to entertain appeal against an order passed by the Commissioner (Appeals) under Section 35A and in view of Sub-Section 4 to Section 35A, such order of the Commissioner(Appeals), at the time of disposal of appeal before him, shall state the points for determination, the decision thereon and the reasons for such decisions. In the instant case such a decision with reasons on the merit of the appeal is not forthcoming since appeal was not dismissed but rejected on the ground of non payment of pre deposit. Having record to the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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