Tribunal allows appeal due to pre-deposit compliance, emphasizes statutory adherence

The Tribunal remanded the case to the Commissioner (Appeals) for a decision on merits, setting aside the dismissal of the appeal due to non-compliance with pre-deposit requirements. The appellant's submission of an affidavit and bank confirmation of fund transfer fulfilled the mandatory pre-deposit condition under the Customs Act. Discrepancies in the service of the Order-in-Original and proof of delivery led to doubts about timely filing. The appeal was allowed for further consideration, emphasizing the significance of statutory compliance and procedural correctness in appeal processes.

---

---

Issues:
1. Failure to submit proof of mandatory deposit under section 129 A of the Customs Act, 1962.
2. Dismissal of appeal by Commissioner (Appeals) for not filing within stipulated period and not depositing 7.5% of disputed amount as required by Section 35F of the Central Excise Act, 1944.
3. Discrepancies in the service of the Order-in-Original and proof of delivery.
4. Appeal challenging the dismissal and requesting remand for decision on merits.

Analysis:
1. The appellant failed to submit proof of mandatory deposit under section 129 A of the Customs Act, 1962. An affidavit was filed stating that an amount had been recovered from the appellant's bank account, satisfying the pre-deposit requirement. The Bank confirmed the deduction and transfer of funds to the tax authority, fulfilling the mandatory pre-deposit condition, making the appeal competent.

2. The appeal was dismissed by the Commissioner (Appeals) due to two reasons: not filing within the stipulated period and not depositing 7.5% of the disputed amount as mandated by Section 35F of the Central Excise Act, 1944. The appellant's delay explanation was based on the recovery notice date and subsequent communications regarding the order's delivery. The appellant contended that the appeal was filed within the stipulated period upon receiving the order, challenging the dismissal.

3. Discrepancies arose regarding the service of the Order-in-Original and proof of delivery. The appellant claimed the order was received after the communication dated 29/31 May 2018, justifying the appeal filing within the stipulated time. The department failed to provide conclusive proof of delivery, relying only on dispatch records. The absence of delivery confirmation raised doubts about the actual service of the order, leading to a remand for further examination.

4. The Tribunal set aside the appellate order dated 29 June 2018, remanding the matter to the Commissioner (Appeals) for a decision on merits. Despite the deduction from the appellant's bank account and transfer to the tax authority, the dismissal for non-compliance with the pre-deposit requirement was deemed unjustified. The appeal was allowed for further consideration on its merits, emphasizing the importance of statutory compliance and procedural correctness in appeal processes.

---