When Tribunal has waived requirement of any pre-deposit, Commissioner(A) could not have dismissed appeal on grounds of non-compliance with provisions of S.35F - order perverse and beyond his powers
VIDE an order dated 03/07/2012, the CESTAT had waived the requirement of pre-deposit of the service tax demand in excess of Rs.30 lakhs and remanded the matter back to the Commissioner (Appeals), to examine the issue on merits and, thereafter to pass an appropriate order in accordance with law.
However, the lower appellate authority vide order dated 27/11/2012 dismissed the appeal for non-compliance with the provisions of section 35F of the Central Excise Act, 1944.
Against this order, the appellant is before the CESTAT.
The Bench was infuriated and observed -
"…When this Tribunal, which is the appellate authority for orders passed by the Commissioner (Appeals), has waived the requirement of any pre-deposit, the Commissioner (Appeals) could not have dismissed the appeal on grounds of non-compliance with the provisions of section 35F. This order of the Commissioner (Appeals) is perverse and beyond his powers."
Not to leave things at that, the Bench directed the Registry to forward a copy of the order to the Chief Commissioner of Customs & Central Excise, Pune for his information and necessary action.
The appeal was allowed by way of remand.