TMI Blog2013 (9) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided against the order of the lower appellate authority directing pre-deposit no appeal could have been preferred before this Tribunal in any event. If aggrieved by the order of the lower appellate authority (directing pre-deposit), the assessee must seek remedy elsewhere other than before this Tribunal. The order of the lower appellate authority dated 20.6.2011 (directing pre-deposit of the adjudicated quantum of tax) is not contended to be an order patently beyond the jurisdiction of the Commissioner (Appeals) and therefore a nullity. - There was failure of pre-deposit and consequently in view of the provisions of Section 35F of the Central Excise Act, 1944, the order of Commissioner (Appeals) dismissing the appeal is impeccable and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-compliance of the provisions of Section 35F of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 the appeal will liable to be rejected and further directed that on deposit of the service tax component as directed, recovery of interest and penalties shall remain stayed, during pendency of the appeal. 3. The admitted factual position is that the appellant did not comply with above stay order. Consequently by the impugned order dated 5/12.12.2012, the appellate authority dismissed the appeal for non-compliance with the pre-deposit requirement specified in the order dated 20.6.2011. 4. In the present appeal, the only challenge is to the order of the lower appellate authority rejecting the appeal for failure of pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Alankar Real Estate P. Ltd. vs. C.C.E., Nagpur 2013 (31) STR 254 (Tri-Mumbai), an appeal against the order of lower appellate authority dismissing the appeal for failure of pre-deposit ordered by that authority was disposed of by the Tribunal on the ground that the lower appellate authority had passed the order (of pre-deposit) without considering the merits of the case. 7. In ICFAI vs. C.C.E., Jaipur reported in 2009 (13) STR 424 (Tri-Del.), an earlier order of the Tribunal dated 7.2.2008 directing the appellant to deposit the stipulated amount appears to have been challenged before the Rajasthan High Court. The High Court by the order dated 2.7.08 set aside the order of the Tribunal dated 7.2.08 and remanded the matter for deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of this case, we quash and set aside the order dated 30-9-1999 dismissing the appeal for non-compliance of provisions of Section 35F of the Act. We restore the appeal to the file of Commissioner (Appeal), Central Excise Customs, Baroda and we direct the Commissioner (Appeals), Central Excise Customs, Baroda to decide the appeal on merits without insisting for pre-payment within a period of eight weeks from the date of receipt of the writ. Since the Gujarat High Court specifically observed that it was not recording any expression on the merits of the case but looking into peculiar facts had quashed the order of the Commissioner (Appeals) (dismissing the appeal for non-compliance with pre-deposit requirement ordered), in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posit is not appealable. The appellant has also not challenged the order dated 20.6.2011 before this Tribunal. It is axiomatic that a right of appeal is a creature of the statute. In the absence of any right of appeal provided against the order of the lower appellate authority directing pre-deposit no appeal could have been preferred before this Tribunal in any event. If aggrieved by the order of the lower appellate authority (directing pre-deposit), the assessee must seek remedy elsewhere other than before this Tribunal. 12. The order of the lower appellate authority dated 20.6.2011 (directing pre-deposit of the adjudicated quantum of tax) is not contended to be an order patently beyond the jurisdiction of the Commissioner (Appeals) and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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