TMI Blog2019 (1) TMI 507X X X X Extracts X X X X X X X X Extracts X X X X ..... round that flat number is different since there might be possibility that both the flats were being possessed by the appellant - delay condoned. Non-payment of statutory pre deposit amount for filing of appeal - Held that:- The appellant contention that 80 per cent of duty liability has been discharged by them has not been supported by any documentary evidence. Going by the statutory provision appeal should not have been entertained or admitted for hearing bereft of statutory pre deposit but the moment it is admitted for hearing, such failure on the part of appellant would have been pointed out to it enabling it to make pre deposit so as to ensure natural justice and not to dismiss the appeal at the end of hearing, after completing the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order but filed the same within 30 days thereafter with a prayer for condonation of delay explaining sufficient grounds for such delay but that was not accepted by the Commissioner (appeals). Further he submitted that out of total tax liability due on the appellant that was over 90 lakhs, 70 lakhs some odd were already paid by it which could have been adjusted towards pre-deposit amount but as the same has not gone on record, he gave his finding that no pre-deposit was specifically made against the duty demand etc. Ultimately the appeal has been dismissed under section 35F of the Central Excise Act that was applicable to service tax matters also. He further contended that appellant was not provided with the opportunity of being heard on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncement of OIOs but he rejected the appellant grounds for delayed filing of appeal before him on further ground that the 4th Floor of Indus House was taken over by Punjab National Bank while OIOs were dispatched to B53 of Indus House. While considering the submissions of the appellant that they had requested the department to issue user id and password on 04.03.2017 and also requested the department to provide them the proof of delivery of impugned order on the appellant, he refused to acknowledge those as sufficient ground as appellant had stated in the appeal memo that on 09.08.2017, they sought proof of delivery but actually the letter of request was dated 24.08.2017 that is after a gap of 2 weeks. Order-in-Appeal at para 10 indicates th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th which was within the condonable period available with the Commissioner. Further having, been acknowledged that possession of appellant office was taken over by the Punjab National Bank authorized officer during the corresponding period, the Commissioner (Appeals) should not have refused to condone the delay on such narrow technical ground that flat number is different since there might be possibility that both the flats were being possessed by the appellant. It has been held by the Hon ble Supreme Court in 1987 (28) ELT 15 that when substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er completing the entire exercise of appeal proceedings. Further having regard to the fact that 10 per cent pre deposit vide challan as exhibit A is filed at this end, no further discussion is required to be done on pre deposit. 8. Section 86 (7) dictates the Tribunal to follow the same procedure as it exercises and follows in hearing the appeals and pronounces orders under Central Excise Act 1994 and the Central Excise Rules. Section 35C empowers this Tribunal to confirm, modify or annul the decision of the order appeal against, which indicates that the merit of the decision is to be assessed by the Appellate Tribunal. In the instant case, as found from the order of the Commissioner (Appeals), no merit concerning tax liability of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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