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2022 (1) TMI 1068 - CESTAT NEW DELHIMaintainability of appeal - non-compliance of mandatory provision regarding pre-deposit in terms of section 35F of Central Excise Act, 1944 - HELD THAT:- Admittedly, the appellant had not filed the amount of pre-deposit (₹ 11,400/-) at the time of filing his initial appeal before Commissioner (Appeals), against the aforementioned Order in Original. In terms of section 35 F of Central Excise Act, 1944 the appeal before Commissioner (Appeals) shall not be entertained by Commissioner (Appeals) unless the appellant deposits 7 ½ % of the duty in dispute. The use of word “shall” in the said provision definitely makes the provision mandatory in nature - the Commissioner (Appeals) has committed no error while rejecting the appeal on the ground of non-compliance of the aforesaid provision vide the Order dated 3rd August, 2021. Simultaneously, it is also apparent on record that the appellant made the compliance of the said provision, subsequently. However, still the opportunity of being heard for disposing his appeal on merits was not considered by Commissioner (Appeals). The letter bearing No.2065/2021 dated 27.07.2021 as is found annexed on the record of this appeal shows that the Commissioner (Appeals) has not re-considered the issue despite that non-compliance of Section 35F was a procedural lapse and that the same has been made good by the appellant - In the present case, since the procedural lapse / the defect stands already cured by the appellant. This is deemed a fit case to be heard by Commissioner (Appeals) on its merit. Matter remitted back to the Commissioner (Appeals) to consider the merits of the appeal for a fresh adjudication - appeal allowed by way of remand.
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