2019 (3) TMI 1913 - AT - Central Excise

Maintainability of appeal - time limit for filing appeal - appeal filed beyond the period prescribed under Section 35 (1) of Central Excise Act - day on which the appellant had deposited the amount has to be taken as the date of complete filing of appeal or not - HELD THAT - On going through the amended provisions of Section 35F it is noted that though the heading of the said Section is to the effect that deposit of certain percentage of duty demanded or penalties imposed before filing of appeal the Section itself is to the effect that- the Tribunal or the Commissioner (Appeals) as the case may be shall not entertain any appeal- unless the appellant has deposited the particular percentage of the demand as the case may be . As such it is seen that in terms of previous Section 35F the mandate is for not entertaining the appeal unless the deposits are made. This only leads to logical conclusion that the pre-deposit in terms of amended provisions of Section 35F is a requirement for disposal of appeal and not a requirement of filing of the appeal. The matter remanded to Commissioner (Appeals) for decision on merit inasmuch as the appellant has admittedly pre-deposited the amount in terms of Section 35F of the Act and the original appeal was also filed well within time - appeal allowed by way of remand.

Summary

Issues:
1. Maintainability of the appeal based on the pre-deposit of duty by the appellant.
2. Interpretation of Section 35 and Section 35F of the Central Excise Act regarding the filing and disposal of appeals.
3. Requirement of pre-deposit under the amended provisions of Section 35F for entertaining appeals.

Analysis:
1. The Commissioner (Appeals) rejected the appeal as not maintainable due to the appellant depositing 7.5% of duty after filing the appeal. The Commissioner held that the appeal was incomplete at the time of filing, and the date of deposit should be considered as the filing date, exceeding the prescribed period under Section 35(1) of the Act. Consequently, the appeal was rejected for not being maintainable.

2. The Member analyzed Section 35, which allows appeals to be filed within 60 days from the date of the lower authority's decision, with a provision for a 30-day condonation of delay. The Member noted that there is no requirement in Section 35 that an appeal is incomplete without the pre-deposit under Section 35F. The only stipulation in Section 35(2) is regarding the form and verification of the appeal, indicating that the use of Section 35F to dismiss appeals is unjustified.

3. Examining the amended Section 35F, the Member observed that while the heading mentions the deposit before filing an appeal, the section itself states that appeals will not be entertained unless the specific percentage of duty is deposited. This indicates that under the amended provisions, pre-deposit is necessary for the disposal of appeals, not for the filing itself. Therefore, the pre-deposit under Section 35F is a requirement for the disposal of appeals, not for their filing.

4. Based on the discussions, the Member set aside the previous order and remanded the matter to the Commissioner (Appeals) for a decision on merit. This decision was made as the appellant had indeed pre-deposited the amount under Section 35F and had filed the original appeal within the stipulated time frame. Consequently, the appeal was allowed by way of remand, directing a review on the merits of the case.

This judgment clarifies the interpretation of Sections 35 and 35F of the Central Excise Act concerning the filing and disposal of appeals, emphasizing that pre-deposit under Section 35F is a requirement for the disposal of appeals and not for their filing.