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TMI Blog2018 (4) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... Short facts leading to the appeal are that Teaserve, is the world's first electronic tea auction centre started by the parent organization INDCOSERVE. It is submitted that INDCOSERVE is an organization, which is functioning under the administrative control of Department of Industries and Commerce, Government of Tamil Nadu. It was established to coordinate the activities of all the Industrial Cooperative tea factories. The need for cooperative tea factories was realised because, initially the small tea growers in the Nilgiris district of South India had to supply their green leaves only to private tea factories. These small growers faced several problems such as low rates for their leaves, heavy rejections of leaves in peak season and manipulation in weighing the leaves. This scenario prompted the Government of Tamil Nadu to form tea factories under cooperative sector with the first Industrial Cooperative Tea factory established in 1962. 3. Tamil Nadu Small Tea Growers Industrial Cooperative Tea Factories Federation Limited (INDCOSERVE) was established in the year 1965. Acceding to the representation made by the small tea growers of the Nilgiris District, the Government, accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of receipt of order. Being aggrieved by the impugned order, the appellant filed an application for modification of stay dated 25.08.2008 and that the appellant was unable to pay pre-deposit due to financial constraints. It was further pointed out before the Commissioner (Appeals) that the administration and staff were all officers of the Government of Tamil Nadu, who were working on deputation since the institution did not have funds to pay salary to regular staff. Vide order dated 25.09.2008, the first appellate authority has dismissed the application as well as the appeal preferred by the appellant on the ground of non-compliance of pre-deposit. 7. Aggrieved by the arbitrary action of the first appellate authority, the appellant preferred an appeal under Section 86 of the Finance Act, 1994 along with an application for grant of stay. CESTAT, at the time of hearing the stay application, directed the appellant to deposit a sum of Rs. 1,00,000/- and report compliance by 27.04.2009 vide its order in Stay Order No.126/09 dated 11.03.2009. 8. Material on record discloses that the appeal preferred by the appellant was taken up for final disposal by CESTAT on 09.02.2017. On the said da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut that the Tribunal, while disposing the stay application filed by the appellant, considered these relevant factors and directed pre-deposit of Rs. 1,00,000/- vide its Stay Order No.126/09 dated 11.03.2009. 12. It is her further submission that the Tribunal ought to have seen that once the appellant has complied with the pre-deposit order passed by it, it is all the more necessary that the matter be remanded back for consideration on merits. Further, in terms of section 35C of the Central Excise Act, 1944, the Hon'ble Tribunal, does not have the authority to dismiss an appeal, as not maintainable when the order assailed before the Tribunal it is an appealable order. The Tribunal ought to have seen that when the Commissioner (Appeals) passes a final order after taking into account the action taken by the parties on the interim order, such an order is not a mere confirmation of the interim order but a final order deciding the status of the appeal itself and such an order is passed under Section 85 of the Finance Act, 1994. The Tribunal ought to have seen that the impugned order being an order passed under Section 85 of the Finance Act, 1994 by the Commissioner (Appeals), the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d legality of the order of the Commissioner (Appeals) dismissing the appeal for non-compliance of pre-deposit order? 2. Placing reliance on the decision in Venus Rubbers Vs. Additional Commissioner of Central Excise, Coimbatore {2014 (310) ELT 685 (Mad)}, Ms.D.Naveena, learned counsel for the appellant submitted that issue is covered by the abovesaid decision. 3. In Venus Leather's case, a Division Bench of this Court has framed the following questions of law:- "1. Whether the Tribunal was right in dismissing the appeal filed by the assessee holding that the Commissioner (Appeals) has no power to review the order of pre-deposit? 2. Whether the Tribunal was justified in dismissing the appeal filed holding that the Appellate Commissioner's order dismissing the appeal for non-compliance of the order in terms of Section 35 F without considering the merits of the assessee's case on the issue of pre-deposit is right?" 4. After considering the few decisions, at paragraph No.12, this Court has held as follows:- "We find that in para 30 (g) of the abovesaid decision, the Tribunal has clearly held that in an appeal against the final order of the Appellate Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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