2004 (6) TMI 574

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....Mani, JDR, for the Respondent. [Order]. -  After examining the records and hearing both sides, I am of the view that the appeals require to be finally disposed of at this stage. Accordingly, after dispensing with pre-deposit under Section 35F of the Central Excise Act, I take up the appeals for final disposal. 2. Appeal No. E/452/04 is against Order-in-Appeal No. 349/2003, dated....

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....trict view taken by ld. Commissioner (Appeals) is that it is incumbent on an appellant to file application under Section 35F for waiver of pre-deposit and stay of recovery, along with his appeal. Such a strict view does not appear to be consistent with the legislative intent underlying Section 35F. The Section reads as under :- "Section 35F. Deposit, pending appeal, of duty demanded or penalty ....

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....eguard the interest of revenue." 4. The requirement under the above provision of law is that any person appealing to the Commissioner (Appeals) or to this Tribunal is liable to deposit with the adjudicating authority the duty demanded and/or the penalty levied. This can be done by the appellants pending the appeal also. Section 35F nowhere stipulates that an application under the first pro....

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....e appellants had not filed any application under Section 35F ibid along with their appeal or subsequent thereto. However, as is apparent from the records, the Commissioner (Appeals), before dismissing the assessee's appeal, did not give them any opportunity to show cause why the appeal should not be rejected for want of compliance with Section 35F. Had such opportunity been given, the party could ....