2023 (5) TMI 857

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....LS THANE/TR/2021-22 dated 28.03.2022 passed by the Commissioner of CGST & Central Excise & Customs (Appeals Thane), Mumbai, stating as follows:- "3. The receipt of the impugned order has been shown as 20.10.2021 and the appeal has been filed on 13.12.2021 i.e. within 60 days as required under Section 35 of CEA, 1944. The Appellant have paid 7.5 % of pre-deposit amount Rs. 1,53,645/- vide DRC-03 ARN AD2712210187079 dated 10.12.2021. 4. I have carefully gone through the facts of the case on record, grounds of appeal and the case laws relied upon by the appellant. Before I take up the case for decision on merit, I find that in the instant case, the Appellant has paid Rs. 1,53,645/- towards mandatory pre-deposit 7.5% of demand....

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....t is not payment of any arrears. 7. As per Section 35F of the Central Excise Act, 1944, an Appellant before the Commissioner (Appeals) has to deposit seven and a half percent of the duty demanded or penalty imposed failing which the appeal will not be entertained. Further, the duty demanded is to include amount determined under Section 11D, amount of erroneous. CENVAT credit taken and amount payable under Rule 6 of the CENVAT Credit Rules. Section 35 of the Central Excise Act, 1944 has been made applicable to Service Tax vide Section 83 of the Finance Act, 1994. 8. From the aforesaid DRC-03 dated 24.08.2021, I observe that Rs. 1,53,645/- has been paid through electronic ledger (Debit entry No. DC2712210065760 dated 10.12.2....

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....osit as stipulated under Section 35 F of the Central Excise Act. The appeal filed by the Appellant is liable for rejection in terms of the provisions as laid down under the relevant acts and Board's Circular discussed supra. 13. In view of the above, the appeal is rejected as not maintainable." 1.2 From the above, it is quite evident that the Commissioner (Appeals) has by the impugned order not decided the issue on merits but has dismissed the appeal only for non-compliance with the provisions of Section 35F of the Central Excise Act requiring mandatory deposit. 2.1 Appellant has filed an application for early hearing of appeal which we find has merits and allow the same. 3.1 We have heard Shri Bhushan Jani, Chartered ....

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....atory" 3.4 From the above letter, it is quite evident that the appellant has now deposited the amount of pre-deposit as required under Section 35F. Appellant has fulfilled the requirement of predeposit in the manner as Commissioner (Appeals) would have accepted it. In para 3 of his order, Commissioner (Appeals) has noted that earlier the appellant had paid the pre-deposit vide DRC-03 ARN AD2712210187079 dated 10.12.2021. Even though the Commissioner (Appeals) could have taken this amount deposited by the appellant by way of above referred debit entry as a payment made under Section 35F, he chose to reject the appeal on a technical ground. 3.5 Counsel for the appellant submits that the amount of pre - deposit by the appellant as noted ....