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2021 (6) TMI 746 - AT - Central Excise100% EOU - Maintainability of appeal - non-compliance of the manadatory predeposit under Section 35F of the Finance Act, 1994 - HELD THAT:- The dismissal of the appeal for non-compliance of mandatory predeposit under Section 35F of the Finance Act, 1994 is not sustainable in law in the present case because the appellant has already paid the entire duty by debiting the cenvat credit account and also paid the interest in cash. Further the Commissioner(Appeals) after hearing the matter on merits should not have dismissed the appeal for non-compliance of Section 35F. Once the credit of education cess and secondary education cess is specifically disallowed to be carried forward as transitional credit, they remain and retain their character as education cess and secondary education cess as cenvat credit as per Rule 3 of CCR, 2004. Since there is no finding on the merit by the learned Commissioner(Appeals), it will not be appropriate to decide the appeal on merits. The dismissal of the appeal for non-compliance of mandatory predeposit is not justified in law when the appellant has already paid the entire duty by debiting the cenvat credit account. The matter remanded back to the learned Commissioner(Appeals) for disposal of the appeal on merits after considering the various provisions contained in Section 140 of CGST Act, 2017 and the Circular dt.02.01.2019 issued by CBIC and after following the principles of natural justice - appeal allowed by way of remand.
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