TMI Blog2015 (1) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... to Commissioner (Appeals) to decide appeals, which cannot be disposed of by a communication of the Superintendent of Central Excise. We have noticed that the application for modification of the stay order was not considered by the Commissioner (Appeals). - we set aside the impugned order. The matter is remanded back to Commissioner (Appeals) to decide the application for modification of the stay order in accordance with law and thereafter, dispose of the appeal as per provisions of Section 35A of the Act. - Decided in favour of assessee. - E/S/41362, 41363/2013 and E/41639, 41640/2013 - FINAL ORDER NOs. 40627-40628/2014 - Dated:- 20-8-2014 - SHRI P.K. DAS AND SHRI R. PERIASAMI, JJ. For the Appellant : Shri R. Parthasarathy, Cons. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35 of the Act cannot be decided by Stay Order issued under Section 35F of the said Act. 4. On the other hand, the learned Authorised Representative on behalf of the Revenue, drew the attention of the Bench to the relevant portion of the impugned order. She submits that the Commissioner (Appeals) in the stay order stated that non-compliance of the stay order would amount to disposal of the appeal automatically. She relied upon the decision of the Tribunal in the case of Lacure Pharmaceuticals Ltd. Vs Commissioner of Central Excise, Vapi reported in 2010 (259) E.L.T.147 (Tri.-Ahmd.). 5. On a perusal of the records, we find that the Commissioner (Appeals) by Stay Order Nos.38 39/2013 (M-IV), dated 10.06.2013, directed the appellant to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) or the Appellate Tribunal is permitted to waive the pre-deposit of duty demanded or penalty levied, if it would cause undue hardship to such person, subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue . 7. It is a substantive right of a person to file appeal under Section 35 of the Act, created under the statute. Section 35F of the Act casts an obligation that the person desirous to appeal shall deposit with the Adjudicating authority the duty demand or the penalty levied. 1st proviso to Section 35F of the Act gives an exception to file one application to the Appellate Authority for waiver of pre-deposit of the dues. If any person would not able to deposit the dues with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant portion of the said letter is reproduced below:- Please refer to your Miscellaneous Application filed with this office seeking modification/review of Orders in Stay Petitions No.38 39/2013 (M-IV), dated 10.06.02013 on appeals referred to above. In this regard, I have been directed to convey that due to non-compliance to the orders of this forum vide Orders in Stay Petitions No.38 39/2013 (M-IV), dated 10.06.2013, the above referred appeals got dismissed automatically on 30.06.2013 i.e., the day after the due date by which pre-deposit was ordered to be paid. 9. We are unable to accept such a communication dated 10.07.2013 issued by the Superintendent of Central Excise. Section 35A of the Act has given power to Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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