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TMI Blog2023 (8) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner (Appeal) or Tribunal is barred from entertaining any appeal before the conditions as imposed by the section 35F are complied with. This section do not put any bar on filing of the appeal or state that appeal could not have been filed till the pre-deposit has been made. The bar has been imposed on the consideration of appeal by the Commissioner (Appeal) or the Tribunal. Thus when the appeal is to be taken up for consideration by the concerned appellate authority he is required to satisfy himself that the conditions of Section 35F are complied with. Thus if the pre-deposit is made at any time before the consideration of the appeal by the concerned authority, then the conditions of Section 35F are satisfied and the said authority is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals), as the case may be, shall not entertain any appeal, under sub-sections (i ii) of Section 35E, 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 customs lower in rank than the Principal Commissioner of Customs or Commissioner of Customs. 4. In the said section the words shall not entertain any appeal has been used, which means that no appeal can be entertained unless and until it is accompanied with details of the deposit particulars of 7.5% of the duty, in case where duty or duty and penalty are in dispute, or penalty, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: Section 35F. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal. - The Tribunal or the Commissioner (Appeals) , as the case may be, shall not entertain any appeal - (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 sub-section (1) of section 35B, unless the appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order has recorded that the appeal was filed by the appellant on 11.10.2019 and the pre-deposit was made on 12.12.2019. The appeal was considered and dismissed by the Commissioner (Appeal) on 22.06.2020. 4. From the above it is evident that In the present case on the date of consideration of the appeal the requirements of 35F have been complied with, thus order of Commissioner (Appeal) dismissing the appeal for this reason is result of improper appreciation of the phrase entertain the appeal , used in the Section 35, ibid. Hon ble High Court of Orissa has in the case of Kirit Kumar K. Thaker [2022 (66) G.S.T.L. 201 (Ori)] held as follows: 8.11 The position as of now stands can be summarized as : prior to 6-8-2014, the pre-deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order-in-Original in appeal shall have to deposit in terms of provisions contained in Section 35F of the Central Excise Act. The requirement to make such deposit is to be fulfilled for the purpose of entertainment of appeal and not filing of the appeal . This can only be reasonable interpretation to the above provision which is inconsonance with law laid down by this Court in Indian Oil Corporation v. Odisha Sales Tax Tribunal, Cuttack, 2009 (Supp.1) OLR 928 = 109 (2010) CLT 355; otherwise it would require adding the words filing of to the above provisions. Section 35F of the Central Excise Act did not bar a party from filing an appeal unless the amounts of tax and penalty demanded by the adjudicating authority are deposited. This is e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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