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2016 (8) TMI 251 - CESTAT MUMBAI

2016 (8) TMI 251 - CESTAT MUMBAI - TMI - Restoration of appeal non-compliance of section 35F of the Central Excise Act,1944 - stay application filed after statutory time limit tax, interest and penalties not paid Held that: - the appellant did not file any stay application along with their appeal within the statutory period under Section 35F of the Central Excise Act, 1944. The Commissioner (Appeals) was correct in rejecting the letter-cum-stay application, which was submitted after one ye .....

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A/89070/16/SMB - Dated:- 4-8-2016 - Mr. Devender Singh, Member (Technical) Shri S.V. Shanbhag, C.A., for the appellant Shri S.L. Karolia, Assistant Commissioner (AR), for the respondent ORDER The present appeal is directed against order-in-appeal No. MUM-II-STAX-000-59-15-16 dated 10.12.2015 passed by Commissioner of Service Tax-II (Appeals), Mumbai. 2. The short issue in this appeal is whether the dismissal of the appellant s appeal by the Commissioner (Appeals) for non-compliance was in accord .....

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alties were imposed under various sections of the Finance Act, 1994. Against the said order, the appellant filed an appeal before the Commissioner (Appeals). They did not file any stay application along with the appeal. After hearing the appellant, the Commissioner (Appeals) dismissed the appeal for non-compliance of Section 35F of the Central Excise Act, 1944, as the appellant, in the absence of stay application, had not deposited the entire amount of tax plus interest and penalties. 4. Learned .....

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by the department. Their plea is that on the basis of this letter-cum-stay application, which was filed before the passing of the order by the Commissioner (Appeals) on 10.12.2015, the Commissioner (Appeals) should have entertained their appeal. The learned counsel also stated that there was no format for the stay application. 5. The learned AR appearing for the department argued that the request for stay has been filed after the statutory period of three months. In fact, it had been filed after .....

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as submitted after one year and four months of the filing of the appeal and much beyond the statutory period laid down in the Central Excise Act. The only option left for the appellant in such a situation was to deposit the entire amount of tax with interest and penalties before filing of the appeal, as the appellant had not sought waiver of pre-deposit. The Commissioner (Appeals) has therefore rightly rejected the appeal for non-compliance of Section 35F ibid relying on the case law of Navin Ch .....

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