2014 (9) TMI 239 - HC - Central Excise

Appeal Dismissed for Non-Compliance with Pre-Deposit Order

The Court upheld the dismissal of the appeal for failure to comply with the pre-deposit order under Section 35F of the Central Excise Act, 1944. It ... Maintainability of appeal - Non compliance of provision of Section 35F - Held that:- Section 35B provides for appellate fora against orders passed under the Act but Section 35F of the Act places an obligation upon an appellant, “desirous of appealing” against tax or penalty to deposit the amount demanded. The proviso to Section 35F, however, empowers the Commissioner (Appeals) and Tribunal to dispense with the precondition of deposit, subject to such terms and conditions as they may deem appropriate. The use of the words “Where in any appeal under this Chapter...” in section 35F of the Act cannot be construed to raise an inference that the appeal cannot be dismissed for failure to comply with an order of pre-deposit. The words and expressions used in Section 35F and the proviso thereto have to be read together. The expressions “the person desirous of appealing” and “where in any appeal under this Chapter....” have to be read in conjunction, with the former expression requiring a person “desirous of filing an appeal” to pre-deposit the amount of duty subject, however, to any order passed reducing the duty etc. An appeal may, therefore, be filed under Section 35B of the Act but can only be entertained and said to be properly constituted for adjudication on merits, if the person “desirous of filing an appeal”, has deposited the amount of duty demanded or penalty levied, subject, however, to any relief that may be granted by the Tribunal, in terms of the proviso to Section 35F of the Act. Failure to comply with an order of pre-deposit, passed under Section 35F of the Act would entail dismissal of the appeal. - Decided against assessee. Issues:Challenge to dismissal of appeal for failure to comply with pre-deposit order under Section 35F of the Central Excise Act, 1944.Analysis:The appellant contested the dismissal of the appeal by the Customs, Excise and Service Tax Appellate Tribunal due to non-compliance with a pre-deposit order under Section 35F of the Act. The appellant argued that an appeal under Section 35B of the Act should not be dismissed solely for failing to adhere to a pre-deposit order. It was emphasized that the Act does not empower the Tribunal to dismiss an appeal for this reason. The appellant referred to relevant judgments to support this stance.The respondent, on the other hand, relied on a Supreme Court decision related to the Customs Act, 1962, to argue that failure to comply with a pre-deposit order would lead to appeal dismissal. The respondent contended that the provisions of the Act are similar to those of the Customs Act, supporting the dismissal of the appeal due to non-compliance with the pre-deposit order.Upon examination of Sections 35B and 35F of the Act, the Court concluded that failure to comply with a pre-deposit order under Section 35F would indeed result in the dismissal of the appeal. Section 35F mandates the deposit of the duty demanded or penalty levied pending an appeal, with provisions for dispensation under certain circumstances. The Court clarified that the appeal must be properly constituted for adjudication on merits only if the appellant has deposited the required amount, subject to any relief granted by the Tribunal.The Court differentiated the judgments cited by the appellant, stating that they did not consider the crucial requirement of a person being 'desirous of appealing' to pre-deposit the amount. By referencing Supreme Court decisions related to the Customs Act, the Court reinforced the stance that failure to deposit the duty amount could lead to appeal dismissal. Consequently, the Court dismissed the appeal without imposing any costs.In conclusion, the judgment clarified the legal obligation of complying with a pre-deposit order under Section 35F of the Act, emphasizing that failure to do so can result in the dismissal of the appeal. The Court's decision was based on a thorough analysis of the relevant provisions and previous judicial interpretations, aligning with the principles established in similar cases under the Customs Act, 1962.