KANTILAL BHAGUJI MOHITE Vs. COMMISSIONER, CENTRAL EXCISE

JUDGEMENT

(1.) We have heard both sides.

(2.) It is argued by the petitioner's counsel that the impugned order of the Customs, Excise and Service Tax Appellate Tribunal dismissing the appeal, without any adjudication on merits is, per-say illegal. It is violative of the constitutional mandate of Article 14 and 19(1)(g) of the Constitution of India. The argument before us is that even if the provisions of Section 35-F of the Central Excise Act, 1944 are imperative or mandatory, still, if no compliance is made of the provisions of pre-deposit, the Tribunal cannot dismiss the appeal without adjudication on merits. The powers of the Tribunal in that behalf are clear. The Tribunal has power to confirm, modify or annual the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. However, the Tribunal is not empowered to dismiss the appeal without adjudication on merits simply because the condition imposed by Section 35-F of the Central Excise Act to obtain interim stay or relief against recovery is not complied with. That would not empower the Tribunal to dismiss the appeal without adjudication on merits.

(3.) We do not enter into larger controversy for the simple reason that Section 35-F of the Central Excise Act is dealing with deposit of certain percentage of duty demanded or penalty imposed before filing the appeal. The wording of the Section is clear. The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal unless the precondition is satisfied. Thus, the amount required to be deposited having been clearly stated, there is no escape from the consequences and the appeal cannot be entertained without compliance with the condition of deposit. Thus, this is a right of appeal created by the Statute and that right is conditional.