TMI Blog2023 (5) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... eon with reasons for such decision and he should not have disposed of the appeal after hearing the appeal only for non-compliance of pre-deposit provisions in view of the wordings available in the text underlined above, namely shall not entertain any appeal and appeal filed by the Appellant is liable for rejection . To put it otherwise, there is a difference between dismissal of appeal and rejection of the same. Having regard to the fact that Appellant had removed the defects and paid the entire pre-deposit amount of 10% in cash through Challan for filing appeal before the CESTAT, as has been noted in order dated 28.02.2023 for admitting the appeal, it is considered proper to remind the appeal back to the Commissioner (Appeals) for d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard Circular No. 984/8/2014-CX dated 16.09.2014 he had dismissed the appeal for non-compliance of Section 35F of the Central Excise Act 1944. Before coming to the issue, we consider it appropriate to reproduce the relevant provision contained in Section 35F and the Board Circular No. 984/8/2014-CX dated 16.09.2014, referred above. Section 35F. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal. The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal,- (i) under sub-section (1) of section 35, unless the appellant has deposited seven and a half per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndatory pre-deposit to be made under the erstwhile Excise Act and in view of the decisions passed in M/s Johnson Matthey Chemical on dated 23.08.2022 by this Tribunal holding that pre-deposit by debiting Electronic Credit Ledger is not sufficient compliance, on that score he could have rejected the appeal at the admission stage and should not have dismissed the appeal without passing an order on merit. 4. Therefore, Having regard to the fact that Appellant had removed the defects and paid the entire pre-deposit amount of 10% in cash through Challan for filing appeal before the CESTAT, as has been noted in order dated 28.02.2023 for admitting the appeal, we consider it proper to remind the appeal back to the Commissioner (Appeals) for det ..... X X X X Extracts X X X X X X X X Extracts X X X X
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