High Court allows appeal despite delayed pre-deposit, emphasizes deposit for appeal entertainment, not filing. Remanded for reconsideration.

The High Court set aside the Commissioner (Appeals)'s decision to dismiss an appeal due to delay in making the mandatory pre-deposit, emphasizing that the pre-deposit is required for the "entertainment of appeal" and not for the "filing of appeal." The Court ruled that the appellant could make the deposit while the appeal is pending. The judgment allowed the appeal, remanding the matter for reconsideration on its merits, stressing the importance of a well-reasoned order within three months.

---

---

Issues involved:
The issues involved in the judgment are related to the dismissal of an appeal due to delay in making the mandatory pre-deposit as required by Section 35F of the Central Excise Act, 1944.

Issue 1: Delay in making pre-deposit
The Commissioner (Appeals) dismissed the appeal due to delay in making the mandatory pre-deposit of seven and a half per cent of the duty demanded or penalty imposed, as required by Section 35F of the Central Excise Act. The appellant had filed the appeal on 11.10.2019 but made the pre-deposit on 12.12.2019, two months after filing the appeal. The Commissioner (Appeals) held that the appeal could not be entertained without the pre-deposit being made before filing the appeal, as mandated by the statute. However, the appellant argued that the pre-deposit was made before the appeal was considered, and therefore, the appeal should not have been dismissed solely on the grounds of delay in pre-deposit.

Decision and Rationale:
The Hon'ble High Court of Orissa's decision in a similar case highlighted that the right to file an appeal is subject to conditions, as provided by Section 35F of the Central Excise Act. The court emphasized that the pre-deposit is required for the "entertainment of appeal" and not for the "filing of appeal." The court clarified that the statute does not bar a party from filing an appeal unless the required amounts are deposited. Therefore, as long as the appeal is pending, the party can deposit the necessary amount. The judgment set aside the Commissioner (Appeals)'s decision and directed a reconsideration of the appeal on its merits, emphasizing the importance of a well-reasoned order.

Conclusion:
The judgment concluded by allowing the appeal and remanding the matter back to the Commissioner (Appeal) for a decision on merits within three months from the date of the order. The judgment highlighted the distinction between the pre-deposit requirement for the "entertainment of appeal" and the timing of the deposit in relation to the filing and consideration of the appeal.

---