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2014 (5) TMI 639 - HC - Central ExciseWaiver of pre deposit - Application under Section 35F - Whether the Tribunal would be competent to decide the appeal filed at the instance of the assessee without deciding first the application for waiver of deposit of the duty demanded or the penalty thereon - Held that:- assessee has not filed any application for waiver at all at the time when the appeal was filed before the Commissioner of Central Excise (Appeals). In such event, the respondent/assessee could maintain the appeal only after the pre-deposit. The Commissioner (Appeals) should not have taken the appeal when the assessee has not made pre-deposit. All the more, the Commissioner (Appeals) has not taken notice of the fact that the assessee has not even filed an application seeking for waiver of pre-deposit so as to enable him to consider the request under the first proviso to Section 35F of the Act - pre-deposit is a condition precedent for filing an appeal before the Commissioner (Appeals) and the filing of application for waiver of such deposit is also a condition precedent, without either of the above, the appeal could not have been entertained by the Commissioner (Appeals). However, keeping the above principle in mind, the facts of the present case should be considered. as the assessee has already paid the entire amount and the Revenue has not raised the said point before the Commissioner (Appeals) and for the first time, it was raised before the CESTAT. We are, therefore, not inclined to interfere with the order of the CESTAT on the facts of the present case. - Decided against Revenue.
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