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2019 (7) TMI 334 - AT - Service TaxMaintainability of appeal - Non-compliance with the pre-deposit - Section 35 F of the Central Excise Act, 1944 - Section 129E of the Customs Act, 1962- HELD THAT:- Perusal of Section 35 F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962 makes is abundantly clear that the 10% of the amount of demand confirmed as is mandatorily to be deposited by the appellant at the time of filing the Appeal before this Tribunal is a mandatory deposit in terms of Section 35F of the Central Excise Act. However, any payment made by the appellant during the course of the investigation has to be adjusted against the said percentage of mandatory deposit. Thus, 7.5% on the amount of duty confirmed was to be paid at the time of filing of the Appeal before the Commissioner(Appeals). The amount of duty confirmed in this case was ₹ 1,57,050/-. The amount already stands deposited, as discussed above is ₹ 37,860/- and 7.5% thereof will be ₹ 11,778.75. The amount admittedly already stands deposited is ₹ 37,860/-. The Commissioner (Appeals) has committed an error while dismissing the Appeal in limini to be barred by Section 35F - Appeal allowed by way of remand.
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