TMI Blog2014 (9) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... nstrued to raise an inference that the appeal cannot be dismissed for failure to comply with an order of pre-deposit. The words and expressions used in Section 35F and the proviso thereto have to be read together. The expressions “the person desirous of appealing” and “where in any appeal under this Chapter....” have to be read in conjunction, with the former expression requiring a person “desirous of filing an appeal” to pre-deposit the amount of duty subject, however, to any order passed reducing the duty etc. An appeal may, therefore, be filed under Section 35B of the Act but can only be entertained and said to be properly constituted for adjudication on merits, if the person “desirous of filing an appeal”, has deposited the amount of du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in an already pending appeal, and mere failure to comply with an order of pre-deposit, passed under Section 35F of the Act, does not empower a Tribunal, to dismiss an appeal, filed under Section 35B of the Act. It is further contended that the only affect of failure to comply with an order of pre-deposit is that stay shall stand declined. In support of his arguments, counsel for the appellant relies upon the following judgments :- (i) Promising Exports Limited v. Union of India, 2009 (243) E.L.T. 3 (Calcutta) (ii) Kishori Pujari Granite Pvt. Ltd. v. Union of India (UOI), 2005 (184) E.L.T. 225 (M.P.) (iii) B.D. Steel and Traders v. Union of India and Another, 1998 (3) ALL MR 52 (Bombay) = 1998 (103) E.L.T. 218 (Bom.). 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Boards of Revenue Act, 1963 (54 of 1963) (hereafter in this Chapter referred to as the Board) or the Appellate Commissioner of Central Excise under section 35, as it stood immediately before the appointed day; (d) an order passed by the Board or the Commissioner of Central Excise either before or after the appointed day, under section 35A, as it stood immediately before that day : Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to,- (a) a case of loss of goods, where the loss occurs in transit from a factory to a warehouse or to another factory, or from o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue : Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing. 5. Section 35B provides for appellate fora against orders passed under the Act but Section 35F of the Act places an obligation upon an appellant, desirous of appealing against tax or penalty to deposit the amount demanded. The proviso to Section 35F, however, emp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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