By TIOL News Service

CHENNAI, SEPT 21, 2018: THE Commissioner (A) dismissed the appeal filed by the present petitioner on the ground that the required pre-deposit was made belatedly after a period of 7 months from the date of filing of the appeal.

It was also held that in the absence of any provision to entertain the appeal with a delay of more than 7 months, the same cannot be entertained.

The Petitioner is before the Madras High Court and submits that when, admittedly, the appeal was presented in time, the belated payment of pre-deposit cannot be the reason to reject the appeal.

Reliance is placed on a Division Bench decision in W.A.Nos. 342 to 347 of 2017 dated 07.06.2017 - 2017-TIOL-1378-HC-MAD-CUS .

On the other hand, the respondent Revenue filed a counter affidavit and relied on a Full Bench decision in the case of State of Tamil Nadu Vs E.P.Nawab Marakkadai [1996 (I) CTC 95].

The High Court observed that the issue has already been considered by the Division Bench (supra) and after taking note of various decisions including the one cited by the counsel for the Revenue had inter alia observed thus -

"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 cannot be dismissed solely on the ground that the mandatory pre-deposit of duty or penalty or both, was not made, before the expiry of the period of limitation, prescribed under Section 128 (1) read with the first proviso of the 1962 Act."

It was further observed that the Court is bound by the above decision of the Division Bench and cannot take a different view. Moreover, the said decision had been accepted by Revenue and acted upon. So also, even though the decision was rendered by considering the provisions of the Customs Act, 1962, the provisions of section 35F of the CEA, 1944 being pari materia, the decision can be applied to the facts of the present case and relief could be granted to the petitioner.

In fine, the Writ petition was allowed and the order passed by the Commissioner(A) was set aside.

The matter was remitted to the Commissioner(A) to take up the appeal and pass orders on merits and in accordance with law.

Quick reference:

Section 35. Appeals to Commissioner (Appeals).- 

(1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Principal Commissioner of Central Excise or Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) hereafter in this Chapter referred to as the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order:

Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.

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;

(See 2018-TIOL-1948-HC-MAD-CX)