2018 (6) TMI 990 - AT - Central Excise

Tribunal allows appeal delay, sets aside order due to compliance, case remanded for further review

The Tribunal condoned a 10-day delay in filing the supplementary appeal due to the timely filing of the main appeal. The appellant, engaged in ... Maintainability of appeal - Non-compliance with pre-deposit - Section 35F of the Central Excise Act, 1944 - Held that:- The dismissal of the appeal by the Commissioner (A) for non-compliance of Section 35F is not sustainable in law in view of the fact that the appellant has made a pre-deposit of ₹ 84,549/- being 7.5% of the amount confirmed in the Order-in-Original - case remanded back to the Commissioner (A) to decide the appeals on merits. Issues:1. Delay in filing supplementary appeal.2. Dismissal of appeals for non-compliance of mandatory pre-deposit under Section 35F of the Central Excise Act, 1944.3. Applicability of pre-deposit requirements.4. Compliance with statutory requirements.Analysis:1. The appellant sought condonation of a 10-day delay in filing the supplementary appeal, stating that the main appeal was filed on time. The Tribunal, considering the timely filing of the main appeal, condoned the delay in filing the supplementary appeal.2. The appeals were filed against a common impugned order dismissing them for non-compliance with mandatory pre-deposit under Section 35F of the Central Excise Act, 1944. The appellant was engaged in manufacturing prefabricated buildings and trading goods, availing CENVAT credit without maintaining separate accounts for dutiable and exempted activities. The lower authority confirmed demands and penalties, leading to the appeal before the Commissioner (A).3. During the hearing, the appellant claimed compliance with pre-deposit requirements, contending that the Commissioner (A) erroneously found non-compliance. The appellant argued that the pre-deposit was made, supported by corresponding challans. The departmental representative acknowledged the pre-deposit made by the appellant before both the Commissioner (A) and the Tribunal.4. The Tribunal, after reviewing the records and arguments, found that the dismissal of the appeal by the Commissioner (A) for non-compliance with Section 35F was unsustainable. It was noted that the appellant had indeed made a pre-deposit of the required amount. Consequently, the Tribunal set aside the impugned order and remanded the case back to the Commissioner (A) for a decision on the appeals' merits.This detailed analysis highlights the issues of delay in filing the supplementary appeal, the pre-deposit requirements under Section 35F, compliance with statutory obligations, and the Tribunal's decision to remand the case for further consideration based on the appellant's fulfillment of pre-deposit obligations.