Pre-deposit waiver in excise appeal led to restoration and remand for consideration of the stay petition.

Dismissal of an excise appeal for alleged non-compliance with the pre-deposit requirement was set aside where no waiver application had been filed, but the appellant explained the omission as inadvertent and undertook to regularise it. The Tribunal directed the appellant to file the stay petition before the first appellate authority within four weeks, and required that authority to consider the petition and pass an order. The appeal was restored and remanded for consideration of the pre-deposit waiver request.

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Issues: Whether the dismissal of the appeal for non-compliance with the pre-deposit requirement could be sustained, and whether the matter should be remanded to enable filing and consideration of the stay petition.

Analysis: The appeal had been dismissed by the first appellate authority for want of compliance with Section 35F of the Central Excise Act, 1944, on the footing that no application for waiver of pre-deposit of penalty had been filed. The appellant stated that the omission to file the stay petition was inadvertent and undertook to file it if the matter was restored. In these circumstances, the Tribunal directed the appellant to file the stay petition before the first appellate authority within four weeks and directed the authority to consider it and pass an order.

Conclusion: The dismissal order was set aside, the appeal was restored, and the matter was remanded to the first appellate authority for consideration of the stay petition.

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