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2023 (8) TMI 990 - AT - Central ExciseMaintainability of appeal - appeal dismissed for the reason of delay in making the pre-deposit - HELD THAT:- In the present case, Commissioner (Appeals) as on very frivolous ground that of pre-deposit as made subsequent filing of the appeal dismissed this appeal and which cannot be justified in the manner because on the date of consideration of the appeal pre-deposit was already made. From the perusal of section 35F it is quite evident that the Commissioner (Appeal) or Tribunal is barred from entertaining any appeal before the conditions as imposed by the section 35F are complied with. This section do not put any bar on filing of the appeal or state that appeal could not have been filed till the pre-deposit has been made. The bar has been imposed on the consideration of appeal by the Commissioner (Appeal) or the Tribunal. Thus when the appeal is to be taken up for consideration by the concerned appellate authority he is required to satisfy himself that the conditions of Section 35F are complied with. Thus if the pre-deposit is made at any time before the consideration of the appeal by the concerned authority, then the conditions of Section 35F are satisfied and the said authority is within his right to consider the appeal and make orders as deemed fit. Also, it is evident that In the present case on the date of consideration of the appeal the requirements of 35F have been complied with, thus order of Commissioner (Appeal) dismissing the appeal for this reason is result of improper appreciation of the phrase “entertain the appeal”, used in the Section 35, ibid. There are no merits in the impugned order and set aside the same. Taking note of the pre-deposit made as recorded in para 6 of the impugned order, it is directed that the Commissioner (Appeals) to hear the appellant on merits and pass a well speaking reasoned order. Matter remanded back to Commissioner (Appeal) for decision on merits within the three months from the date of receipt of this order.
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