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2018 (9) TMI 1269 - HC - Central ExciseNon-Compliance of Pre-deposit - time limitation - appeal dismissed on the reason that the required pre-deposit was made belatedly after a period of 7 months from the date of filing of the appeal - Section 35F of the Central Excise Act, 1944. Whether the appeal presented within time can be rejected on the ground that pre-deposit was made belatedly? Held that:- The issue has already been considered by the Division Bench of this Court in MR. RAMKI VERSUS THE ADDITIONAL COMMISSIONER OF CUSTOMS (PAU) , THE COMMISSIONER OF CUSTOMS (APPEALS I) [2017 (7) TMI 832 - MADRAS HIGH COURT], wherein the Division Bench after taking note of various decisions, including the Full Bench decision relied on by the respondents, held that The proviso to Section 128 (1) of the 1962 Act, empowers the second respondent to adjudicate upon an appeal filed beyond the period of 60 days, but, within a further period of 30 days, provided sufficient cause is shown for the delay in presenting the appeal. Section 129 E (i) on the other hand, provides that the second respondent shall not entertain any appeal under sub-section (1) of Section 128, unless the appellant has deposited 7.5% of the duty demanded or penalty imposed or both, in pursuance of a decision or an order passed by an Officer of Customs, lower than the rank of Commissioner of Customs. Since the Division Bench has also taken into consideration of the Full Bench decision relied on by the respondents and has come to the above conclusion that the Appellate Authority could not have dismissed the appeal on the ground that the prescribed mandatory appeal was made beyond the condonable period, this Court, bound by the above decision of the Division Bench, cannot take a different view. The matter is remitted back to the second respondent to take up the appeal and pass orders on the same on merits - appeal allowed by remand.
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