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TMI Blog2019 (5) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... for dispensing with pre-deposit of duty and penalty pending the disposal of the appeal. Once such an application is filed pending the appeal then in terms of the second proviso to Section 35F of the Act, it has to be disposed of by the Appellate Authority whenever possible within 30 days of filing of such an application - There is no period of limitation provided in Section 35F of the Act to file an application for dispensing with pre-deposit of duty and penalty. Therefore, it is not open to read a provision of limitation where it is not found in the section. Undoubtedly, the right of an appeal can be conditional. However, the conditions for the appeal being entertained are to be imposed by legislation and not by executive fiat / action. The order of the Commissioner (Appeals) dated 10th December, 2015 and the impugned order of the Tribunal dismissing the appeal itself on the ground that the stay application has been filed belatedly in a pending appeal, is not sustainable. In the present facts, the application for dispensing with the requirement of pre-deposit under Section 35F of the Act was on record before Commissioner of Central Excise (Appeals) when he passed an order, dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 31st October, 2013, the Appellant had neither filed any evidence of depositing the service tax and penalty as adjudicated nor did it file an application for dispensing with the requirement of predeposit of tax and penalty as provided under Section 35F of the Act which is made applicable to the Finance Act, 1994 by virtue of Section 83 thereof. (iii) However, during the pendency of the above appeal, on 12th May, 2015, Appellant filed an application with the Commissioner (Appeals), seeking dispensation of the pre-deposit of the tax and penalty till the final disposal of its appeal. The Commissioner (Appeals) grated a hearing to the Appellant on 24th November, 2015. The Commissioner (Appeals) without taking up the stay application for consideration, by an order dated 10th December, 2015 dismissed the Appellant's appeal. This on the ground of its failure to deposit the tax and penalty before filing of an appeal in terms of Section 35F of the Act; (iv) Being aggrieved with the order dated 10th December, 2015 of the Commissioner (Appeals), the Appellant filed an appeal to the Tribunal. By an order dated 4th August, 2016, the Tribunal dismissed the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise (Appeals) shall exercise the same powers and follow the same procedure as he exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944. Section 35F. Deposit, pending appeal, of duty demanded or penalty levied Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied; Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause under hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose as to safeguard the interest of revenue: Provided further that where an application is filed before the Commissioner (Appeals) for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This is the only reasonable interpretation to the above provision, otherwise it would require adding the words 'filing of' to the above provisions. This is not permitted. Moreover, the appeals are being accepted without the party first showing evidence of pre-deposit or an order of the Appellate Authority dispensing with such deposit. Section 35F of the Act as it stood at the relevant time did not bar a party from filing an appeal unless the amounts of tax and penalty confirmed by the adjudicating authority, is deposited. In fact, whenever the parliament so desired to restrict the right to file an appeal only on paying the amounts it has so provided. This is evident from Section 106 (7) of the Central Goods and Service Tax Act, 2017 which, inter alia, provides that no appeal shall be filed with the Appellate Authority unless the amount of tax and duty is deposited along with the appeal. Thus, from the above, it is evident that whenever the Parliament desired to make a precondition that the amount of duty and/or penalty should be deposited before the Appeal is filed, it is so provided in the legislation. Thus, in terms of Section 35F of the Act, so long as the appeal is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e heard on merits. In the present case, the application for stay although pending when the appeal was dismissed was not taken up for consideration before dismissal. 10. Therefore, the impugned order dated 4th August, 2016 of the Tribunal and the order dated 25th December, 2015 of the Commissioner (Appeals) are to be set aside, being bad in law. 11. In the above view, the substantial questions of law are answered as under: Question (a) In the negative i.e. in favour of the Appellant-Assessee and against the Respondent Revenue; and Question (b) In the negative i.e. in favour of the Appellant-Assessee and against the Respondent-Revenue. 12. The impugned order dated 4th August, 2016 and the order dated 10th December, 2015 of the Commissioner (Appeals) are set aside. The matter is remanded to the Commissioner (Appeals) for fresh consideration. We note that the application for stay of the Appellant has not been examined on merits by the Commissioner (Appeals). Thus, the Appeal and stay application of the Appellant before the Commissioner (Appeals) is restored to it for a fresh consideration and disposal in accordance with law. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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