TaxTMI 
TaxTMI 
TaxTMI 
2023 (8) TMI 990
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....ason of delay in making the pre-deposit. 2. Heard both the sides. 3. Commissioner (Appeals) has dismissed this appeal stating as follows:- "3. In the said statute it has been clearly stipulated that the Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal, under sub-sections (i & ii) of Section 35E, unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of customs lower in rank than the Principal Commissioner of Customs or Commissioner of Customs. 4. In the said section the words "shall not entertain any appeal" has been....
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.... the appeal dismissed this appeal and which cannot be justified in the manner because on the date of consideration of the appeal pre-deposit was already made. Section 35 F of the Central Excise Act, 1944 reads as follows: "Section 35F. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal. - The Tribunal or the Commissioner (Appeals) , as the case may be, shall not entertain any appeal - (i) under sub-section (1) of section 35, unless the appellant has deposited seven and a half per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the Pr....
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....ction 35 F are satisfied and the said authority is within his right to consider the appeal and make orders as deemed fit. In the present case Commissioner (Appeal) has in para 6 of the impugned order has recorded that the appeal was filed by the appellant on 11.10.2019 and the pre-deposit was made on 12.12.2019. The appeal was considered and dismissed by the Commissioner (Appeal) on 22.06.2020. 4. From the above it is evident that In the present case on the date of consideration of the appeal the requirements of 35F have been complied with, thus order of Commissioner (Appeal) dismissing the appeal for this reason is result of improper appreciation of the phrase "entertain the appeal", used in the Section 35, ibid. Hon'ble High Court of Ori....
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....e Act, 1944, as applicable to Finance Act, 1994, by virtue of Section 85 of Chapter V of the Finance Act, 1994, it is unambiguously suggested that a party who desires to challenge the Order-in-Original in appeal shall have to deposit in terms of provisions contained in Section 35F of the Central Excise Act. The requirement to make such deposit is to be fulfilled for the purpose of "entertainment of appeal" and not "filing of the appeal". This can only be reasonable interpretation to the above provision which is inconsonance with law laid down by this Court in Indian Oil Corporation v. Odisha Sales Tax Tribunal, Cuttack, 2009 (Supp.1) OLR 928 = 109 (2010) CLT 355; otherwise it would require adding the words "filing of" to the above provision....