CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL ALLAHABAD REGIONAL BENCH - COURT No. II (Arising out of Order-in-Appeal No.320/ST/Alld/2021 dated 27/10/2021 passed by Commissioner (Appeals) Central Goods & Services Tax, Allahabad)

M/s Uniflex Industries Pvt. Ltd., ….Appellant (C-14, Panki Industrial Area, Site-1, Kanpur-208022)

VERSUS Commissioner of Central Excise &

CGST, Kanpur ….Respondent (117/7, Sarvodaya Nagar, Kanpur-208005)

APPEARANCE Shri Amit Awasthi, Advocate for the Appellant Shri Santosh Kumar, Authorised Representative for the Respondent CORAM: HON’BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL)

FINAL ORDER NO.70430/2025 DATE OF HEARING : 26 June, 2025 DATE OF DECISION : 26 June, 2025 SANJIV SRIVASTAVA:

This appeal is directed against Order-in-Appeal No.320/ST/Alld/2021 dated 27/10/2021 passed by Commissioner (Appeals) Central Goods & Services Tax, Allahabad. By the impugned order Commissioner (Appeals) has rejected the appeal of the appellant by observing as follows:-

“4.3 Since the instant appeal has been filed on 10.06.2021, after 06.08.2014, i.е., the date from which the amended Section 35F of the Act came into effect, without complying with the statutory requirement of pre- deposit, when the Commissioner (Appeals) had no jurisdiction to entertain or admit the appeals, I, therefore, find that this appeal is not maintainable in terms of Section 35F of the Act and in the light of the aforementioned judicial pronouncements.

5. In view of the above, I hold that the present appeal filed by the appellant is not maintainable and as such, the same is rejected.”

2.1 From the above impugned order it is evident that Commissioner (Appeals) has dismissed the appeal of the appellant only for want of mandatory pre-deposit.

3.1 I have heard Shri Amit Awasthi learned Counsel appearing for the appellant and Shri Santosh Kumar learned Authorized Representative appearing for the revenue.

3.2 Arguing for the appellant learned Counsel submits that appellant have now complied with the conditions of mandatory pre-deposit i.e. 10% of the disputed amount, as required in terms of Section 35 of the Central Excise Act, 1944 for consideration of appeal by the Tribunal.

3.3 Arguing for the revenue learned Authorized Representative fairly agrees that the appellant have now made the mandatory pre-deposit.

4.1 I have considered the impugned order along with the submissions made in appeal and during the course of argument.

4.2 Commissioner (Appeals) had dismissed the appeal only on the ground of mandatory pre-deposit (7.5 of the disputed tax) being not made before him or he was not satisfied with the pre- deposit made. When this appeal was filed before CESTAT, a defect memo was issued to the appellant seeking the evidence of pre-deposit of 10% of the disputed tax. After considering the submissions made Tribunal vide Order dated 01.04.2024 noted the compliance with Section 35F of the Act, and admitted the appeal. I do not find anything to differ with the same.

4.3 As no order has been passed on merits by the Commissioner (Appeals), the matter needs to be remanded back to the Commissioner (Appeals) for redetermination of the issue on merits without insisting upon the pre-deposit. The appellant has now deposited the entire amount required to be deposited as mandatory pre-deposit for consideration of the appeal by this Tribunal i.e. 10% of the disputed tax amount as prescribed by Section 35F of the Central Excise Act, 1944 and made applicable to Service Tax matters by Section 83 of the Finance Act, 1994.

4.4 I want to make it clear that appellant shall not withdraw any part of the pre-deposited amount or make a claim for any refund of this amount till the disposal of the appeal by the Commissioner (Appeal) in remand proceedings.

5.1 Appeal is allowed and matter is remanded back to Commissioner (Appeal) for denovo consideration.

5.2 Since the appeal has been quite old, Commissioner (Appeal) is directed to decide the appeal on merits of the case by following the pri