By TIOL News Service

MUMBAI, FEB 06, 2019: THE order of the original authority, received by the appellant on 30 August 2014, was challenged before the Commissioner (A) on 14 November 2014 but without the mandatory pre-deposit prescribed in section 35F of CEA, 1944, as amended with effect from 6 August 2014.

Notices came to be issued proposing rejection of the appeal for this 'deficiency' and in response thereto, by communication dated 19 December 2014, it was informed that the prescribed amount, as evidenced by the e-receipts dated 2 December 2014 and 19 December 2014, was deposited.

The Commissioner (A) interpreted section 35F of CEA, 1944, and in particular the expression 'entertain', as mandating the pre-deposit before filing of the appeal (within the stipulated period) to be compliant with section 35(1) of CEA, 1944. It was, therefore, concluded that, even with exercise of power to condone, the appeal should have been filed by 28 November 2014 instead of the effective date of appeal viz. 2 December 2014.

Owing to the alleged non-compliance with the provisions of s.35F of the CEA, 1944, the appeal came to be rejected.

The appellant is before the CESTAT.

After hearing the AR (as none appeared for the appellant), the CESTAT inter alia observed that it was unable to concur with the impugned order since -

+ Filing an appeal, indicating the limitation therein, is provided for in section 35(1) of Central Excise Act, 1944. Beyond that threshold, the sufficiency of an appeal will determine its maintainability for being entertained. Hence, the appeal, having been filed on 14 November 2014, is within the condonable period.

+ The change in law mandating pre-deposit came into place on 6 August, 2014 and, with that change, orders should have included that information in the preamble to enable appellant to comply. This is absent in the impugned order and it was only by communication dated 9 December 2014 that the appellant was made aware of the deficiency which was made good by them.

+ Upon the matter being taken up for disposal on 30 December 2014, the requirement of pre-deposit had been complied with and the first appellate authority, even in the absence of the appellant, should have disposed off the matter on merit. Not having done so, we are unable to consider the submissions made in the present appeal.

The impugned order was, therefore, set aside and the matter remanded to the lower appellate authority.

(See 2019-TIOL-379-CESTAT-MUM)