TaxTMI 
TaxTMI 
2019 (5) TMI 241
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....ms, Excise and Service Tax Appellate Tribunal (the Tribunal). 2. This appeal was admitted on 8th April, 2019 on the following substantial questions of law: "(a) Whether the Central Excise Act, 1944 or the Finance Act, 1994 prescribes any time limit for filing the Stay application before Commissioner (Appeals)? (b) Whether the Tribunal was justified in dismissing the appeal solely on the ground that there was a delay in filing the stay application before Commissioner (Appeals) even when admittedly the stay application had been filed six months before the date of hearing, and waiver of pre-deposit was specifically pleaded at the time of hearing before Commissioner (Appeals)?" 3. At that time i.e. on 8th April, 2....
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....on of the pre-deposit of the tax and penalty till the final disposal of its appeal. The Commissioner (Appeals) grated a hearing to the Appellant on 24th November, 2015. The Commissioner (Appeals) without taking up the stay application for consideration, by an order dated 10th December, 2015 dismissed the Appellant's appeal. This on the ground of its failure to deposit the tax and penalty before filing of an appeal in terms of Section 35F of the Act; (iv) Being aggrieved with the order dated 10th December, 2015 of the Commissioner (Appeals), the Appellant filed an appeal to the Tribunal. By an order dated 4th August, 2016, the Tribunal dismissed the Appellant's appeal on the ground that Appellant had failed to comply with th....
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.... appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months. (4) The Commissioner of Central Excise (Appeals) shall hear and determine the appeal and, subject to the provisions of this Chapter, pass such orders as he thinks fit and such orders may include an order enhancing the service tax, interest or penalty. Provided that an order enhancing the service tax, interest or penalty shall not be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement. (5) Subject to the provisions of this Chapter, in hearing the appeals and making orders und....
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....poses of this section "duty demanded" shall include (i) amount determined under section 11D; (ii) amount of erroneous Cenvat credit taken; (iii) amount payable under rule 57CC of Central Excise Rules, 1944; (iv) amount payable under rule 6 of Cenvat Credit Rules, 2001 or Cenvat Credit Rules, 2002 or Cenvat Credit Rules, 2004; (v) interest payable under the provisions of this Act or the rules made thereunder." 6. Mr. Talekar, the learned Counsel in support of the appeal submits that there is no time limit to file an application for stay under Section 35F of the Act. Thus dismissing the appeal for failure to file an application for stay in an appeal filed within time is bad in law. It is submitt....
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....visions. This is not permitted. Moreover, the appeals are being accepted without the party first showing evidence of pre-deposit or an order of the Appellate Authority dispensing with such deposit. Section 35F of the Act as it stood at the relevant time did not bar a party from filing an appeal unless the amounts of tax and penalty confirmed by the adjudicating authority, is deposited. In fact, whenever the parliament so desired to restrict the right to file an appeal only on paying the amounts it has so provided. This is evident from Section 106 (7) of the Central Goods and Service Tax Act, 2017 which, inter alia, provides that no appeal shall be filed with the Appellate Authority unless the amount of tax and duty is deposited along with t....
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.... with the requirement of pre-deposit under Section 35F of the Act was on record before Commissioner of Central Excise (Appeals) when he passed an order, dismissing the appeal. In fact, he ought to have dealt with the Appellant's appeal for stay before dismissing the appeal. This is particularly so, as there is no period of limitation provided for filing an application under Section 35F of the Act. Section 85 of the Finance Act, 1994 doe not prohibit/bar a person from filing an appeal with the Appellate Authority in the absence of depositing amounts of duty and penalty confirmed by the lower authorities. Thus, the Appellant was entitled to file an application under Section 35F of the Act even after it had filed an appeal, provided it ....