TaxTMI 
TaxTMI 
2014 (8) TMI 611
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....miscellaneous appeal :- i) Whether the Tribunal was right in dismissing the appeal filed by the assessee holding that the Commissioner (Appeals) has no power to review the order of pre-deposit. ii) Whether the Tribunal was justified in dismissing the appeal filed holding that the Appellate Commissioner's order dismissing the appeal for non-compliance of the order in terms of Section 35-F without considering the merits of the assessee's case on the issue of pre-deposit is right. 3. The brief facts necessary for the disposal of this appeal are as under :- The appellant/assessee is a manufacturer of articles of rubber, falling under the Central Excise Tariff Heading 40. In respect of the goods of the assessee, there was a s....
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....der Section 35-F of the Central Excise Act. 4. The appellant, vide letter dated 19.3.12, made a request to the Appellate Commissioner to reconsider the order dated 24.2.12. The Appellate Commissioner took up the said request letter dated 19.3.12 as a review application and proceeded to dispose of the appeal in the following manner, vide order dated 21.5.12 :- (i) The assessee had no case on merits ; (ii) There is no power to review/reconsider the order directing pre-deposit ; and (iii) The assessee had not complied with the direction of the Appellate Commissioner in his order dated 24.2.12 and, therefore, the appeal is liable to be rejected summarily for non-compliance. 5. Aggrieved by the above said order of the Appellate Co....
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....eals) to review his order. But such a power is available to the Tribunal under Section 35-C (2) of the Act to rectify any mistake apparent on the record. Therefore, we find that the Tribunal was justified in rejecting the plea of the appellant that the Commissioner (Appeals) ought to have reviewed the order. When there is no power under the statute, the Commissioner (Appeals) has no authority to entertain the application for review of the order. Accordingly, the first substantial question of law is answered against the assessee. 9. Insofar as the Tribunal dismissing the appeal holding that the Commissioner (Appeals) was justified in rejecting the appeal for non-compliance without endeavouring to look into the issue of prima facie case, b....
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....not be the slightest indication of a likelihood of prejudice to the interest of public revenue; (5) While dealing with the applications twin requirements of consideration i.e., consideration of undue hardship and imposition of conditions to safeguard the interests of revenue have to be kept in view; (6) When the Tribunal decides to grant full or partial stay, it has to impose such conditions as may be necessary to safeguard the interests of the revenue. This is an imperative requirement; and (7) An appellate Tribunal, being a creature of the statute, cannot ignore the statutory guidance while exercising general powers or expressly conferred incidental powers. 11. The Tribunal has also considered the above decision in CCE, Guntur....
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....o rectify any mistake apparent on the record) only on this Tribunal, the Commissioner (Appeals) may entertain an application for rectification/modification of a pre-deposit order, but only for rectification of an error on the face of the record; (c) The appellate Commissioner could avoid an invitation/plea for rectification by a careful, good faith and critical analysis of the prima-facie merits of the case and other relevant parameters, while disposing of an application for pre-deposit. Adjudicatory discipline mandates that the appellate Commissioner must follow established judicial norms by unreservedly following decisions of the Supreme Court, the High Courts and of this Tribunal, wherever such decisions operate and are brought to his....
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...., in the given facts and circumstances is erroneous, the Tribunal is required to set aside the order of the appellate authority and remit the matter to the appellate Commissioner for denovo consideration, after passing an appropriate order as to pre-deposit. 12. We find that in para-30 (g) of the abovesaid decision, the Tribunal has clearly held that in an appeal against the final order of the Appellate Commissioner (dismissing the appeal for failure to pre-deposit), the Tribunal will not adjudicate upon the merits of the appeal, but if the order of pre-deposit passed by the Commissioner (Appeals) in the given facts and circumstances of the case is erroneous, the Tribunal is required to set aside the order of the Appellate Authority and ....