Appeal dismissed for non-compliance with pre-deposit order; restoration granted after payment considered "without protest."

The appeal by M/s. Carborundum Universal Ltd. against a duty demand, penalty, and interest was dismissed due to non-compliance with the pre-deposit order under Section 35F of the Central Excise Act. Although the initial payment was made "under protest," the Tribunal allowed appeal restoration after considering the payment as made "without protest" due to the circumstances of early payment and impossibility of removing protest remarks. The restoration application was granted, emphasizing compliance with Section 35F requirements.

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Issues:
1. Compliance with pre-deposit order under Section 35F of the Central Excise Act.
2. Validity of payment made "under protest" for pre-deposit.
3. Application for restoration of appeal based on pre-deposit compliance.

Analysis:
1. The appellant, M/s. Carborundum Universal Ltd., filed an appeal against an Order-in-Appeal upholding a duty demand, penalty, and interest. The Tribunal directed a pre-deposit of the duty amount of Rs. 86,009, with a deadline for compliance. Non-compliance with Section 35F was cited as the reason for dismissal of the appeal when no representative was present on the compliance date.

2. The payment of Rs. 86,009 was made on 9-3-2005 "under protest," which was not considered a valid compliance with the pre-deposit order. The Tribunal instructed the removal of the "under protest" remarks for appeal restoration. The appellant's counsel argued that the payment was made before the pre-deposit order and requested treating it as made "without protest" for restoration purposes.

3. The appellant's counsel contended that due to the early payment and impossibility of removing the protest remarks, the payment should be deemed compliant with Section 35F. The Tribunal accepted this argument, allowing the restoration of the appeal based on the payment being considered as made "without protest." The restoration application was granted, considering the circumstances and the legal provisions under Section 35F of the Central Excise Act.

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