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TMI Blog2018 (9) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... as per Section 35F of the Central Excise Act, 1944. 2. The petitioner is an Assessee and registered with the Service Tax Commissionerate for rendering service tax under the category of renting of immovable property. Pursuant to the issuance of show cause notice, an order in original dated 25.11.2016 was passed against the petitioner, wherein and whereby, the Adjudicating Authority confirmed the service tax demand and interest apart from imposing penalty. 3. Challenging the said order, the petitioner preferred an appeal before the Commissioner of Central Excise (Appeals) on 09.02.2017. However, the petitioner did not make the pre-deposit along with the appeal and on the other hand, they made such deposit on 27.09.2017, with a delay of 7 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be rejected on the ground that pre-deposit was made belatedly, has already been considered by the Division Bench of this Court in W.A.Nos.342 to 347 of 2017 dated 07.06.2017, wherein the Division Bench after taking note of various decisions, including the Full Bench decision relied on by the respondents herein viz., [1996 (I) CTC 95], has observed at Paragraph No.24.4 to 32 as follows: 24.4.Therefore, a plain reading of the expression, 'presenting' which obtains, in proviso to Section 128 (1), as against 'entertain' which obtains, in Section 129 E, would have us, come to the conclusion that as long such appeal is presented, i.e., lodged, within the prescribed period of limitation including the condonable period, it cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cond respondent i.e., "The Commissioner of Customs (Appeals-I)". 27.1.To our minds if this procedure is adopted it would to a great extent address the concerns of the Revenue. 27.2.Furthermore, as correctly submitted by Mr.Sam, Clause (i) of Section 129 E applies to appeals preferred to the second respondent i.e., The Commissioner of Customs (Appeals-I). While Clause (ii) and (iii) of Section 129 E apply to appeals preferred to the Tribunal, albeit, in different circumstances. The different circumstances is pivoted on the Authority from whose order appeal is preferred to the Tribunal. 28.Before we conclude, we must also deal with the submission of Mr.Chopda that the judgment of the Full Bench in the matter of: State of Tamil Nadu Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 31 of the Act is as follows: "31.Appeal to the Appellate Assistant Commissioner.- (1) Any person objecting to an order passed by the appropriate authority under section 4 - A, section 12, section 12 - A, section 14, section 15, sub-sections (1) and (2) of section 16, section 18, sub-section (2) of section 22, section 23 or section 27 [other than an order passed by an Assistant Commissioner (Assessment)] may, within a period of thirty days from the date on which the order was served on him in the manner prescribed, appeal against such order to the Appellate Assistant Commissioner (having jurisdiction): Provided that the Appellate Assistant Commissioner may, within a further period of thirty days admit an appeal presented after the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the two Sections. Therefore, in our opinion, the said judgment would have no applicability to the facts of the instant case. 31.1.In our opinion, the judgment which is closer to the facts obtaining in the present case, is the judgment of the Supreme Court rendered in M/s.Ranjit Impex Vs. Appellate Deputy Commissioner and Another, (2013) 10 Supreme Court Cases 655. For the sake of convenience, the observations made by the Supreme Court in paragraph nos.2 to 4 and 6 being apposite, are set out hereafter: "2.The factual narration would exposit that the appellant herein preferred an appeal before the Deputy commissioner I, Commercial Taxes and at the time of presentation, a sum of Rs. 8,52,472 was required to be deposited as per the calc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal shall not be considered on merits and eventually has to be dismissed on that ground. 6.Having heard the learned counsel for the assessee and the learned counsel for the Revenue, we are inclined to direct that the appellant shall deposit the amount as required by the Deputy Commissioner I, Commercial Taxes vide order dated 6-1-2011 by 30-9-2013 whereafter the appeal shall be heard and disposed of on merits. As far as the adjustment/refund is concerned, it is open to the appellant to initiate any independent proceeding. The conclusion of the Division Bench with regard to the factum that there has been proper adjustment by the Department in respect of the claim made by the assessee is set aside. However, we may proceed to clarify ..... X X X X Extracts X X X X X X X X Extracts X X X X
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