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2014 (5) TMI 217 - AT - Service TaxMaintainability of appeal and stay order passed by the commissioner (Appeals) - Order passed u/s 85 - Appeal u/s 86 - Held that:- From an interactive analyses of the provisions of Sections 83 and 85 of the 1994 Act read with the proviso to Section 35 F of the 1994 Act, the conclusion is compelling that pre – deposit of the entire adjudicated liability including tax / duty, interest and penalty (if any) is normally the sine qua non for triggering the authority of the appellate Commissioner to hear an appeal, whether under provisions of 1944 Act or the 1994 Act. Where discretion is exercised by such appellate authority under the proviso to Section 35F and waiver either wholly or partly is granted, of the pre – deposit requirement, appellate Commissioner gets jurisdiction to hear the appeal thereafter and on compliance by an appellant of the pre – deposit if any is ordered by the appellate Commissioner by an order passed under the first proviso to Section 35 F A pre – deposit (unless wholly waived) either in terms of Section 35 F open compliance with the orders passed under the first proviso to Section 35 F, is a condition precedent to the exercise of the substantive appellate jurisdiction of the Commissioner (Appeals), to adjudicate upon the appeal or an interlocutory proceeding therein such as grant of stay. An order of the appellate Commissioner under Section 35F of the 1944 Act read with Section 83 of the 1994 Act is not a proceeding strict senso under Section 85 of the 1994 Act. It is in the nature of preliminary step leading to the substantive adjudication process, dealing only with the issue of pre – deposit and an application for waiver thereof. On the aforesaid premise, the impugned order of the appellate Commissioner passed under the proviso to Section 35 F of the 1944 Act, directing the appellant to deposit 50% of the adjudicated tax liability (excluding the interest and penalty component) cannot be considered to be an order passed under Section 85 of the 1994 Act. Therefore no appeal to this Tribunal is maintainable under Section 86 of the said Act - Decided against assessee.
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