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2014 (9) TMI 239 - HC - Central ExciseMaintainability of appeal - Non compliance of provision of Section 35F - Held that:- Section 35B provides for appellate fora against orders passed under the Act but Section 35F of the Act places an obligation upon an appellant, “desirous of appealing” against tax or penalty to deposit the amount demanded. The proviso to Section 35F, however, empowers the Commissioner (Appeals) and Tribunal to dispense with the precondition of deposit, subject to such terms and conditions as they may deem appropriate. The use of the words “Where in any appeal under this Chapter...” in section 35F of the Act cannot be construed to raise an inference that the appeal cannot be dismissed for failure to comply with an order of pre-deposit. The words and expressions used in Section 35F and the proviso thereto have to be read together. The expressions “the person desirous of appealing” and “where in any appeal under this Chapter....” have to be read in conjunction, with the former expression requiring a person “desirous of filing an appeal” to pre-deposit the amount of duty subject, however, to any order passed reducing the duty etc. An appeal may, therefore, be filed under Section 35B of the Act but can only be entertained and said to be properly constituted for adjudication on merits, if the person “desirous of filing an appeal”, has deposited the amount of duty demanded or penalty levied, subject, however, to any relief that may be granted by the Tribunal, in terms of the proviso to Section 35F of the Act. Failure to comply with an order of pre-deposit, passed under Section 35F of the Act would entail dismissal of the appeal. - Decided against assessee.
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