2016 (8) TMI 1251 - AT - Central Excise

Waiver of Pre-deposit - Section 35F of the Central Excise Act 1944 - amendment brought in the section on 6-8-2014 - Held that - there is no provision in the Central Excise Act 1944 and CESTAT (Procedure) Rules 1982 CESTAT circular or CBEC circular which satisfies that the amount paid in one appeal could be adjusted towards another appeal. The language of Section 35F is very clear and it says that the Tribunal should not entertain any appeal without making the mandatory pre-deposit specified in the Section - appellants directed to pre-deposit as per Section 35F within one month from the date of receipt of the certified copy

Summary

Issues:
1. Waiver of pre-deposit under Section 35F of the Central Excise Act, 1944 for hearing appeals.
2. Interpretation of Section 35F regarding mandatory pre-deposit.
3. Applicability of previous judgments under un-amended provisions of Section 35F.
4. Requirement of individual pre-deposits for separate appeals.

Analysis:

Issue 1: Waiver of pre-deposit under Section 35F
The appellant sought waiver of pre-deposit of 7.5% of the duty demand confirmed against it for hearing the appeals. The appellant argued that various payments related to duty, penalty, and interest had already been made during the investigation before the issue of the notice. The appellant contended that these payments should be considered as fulfilling the mandatory pre-deposit requirement under the amended Section 35F.

Issue 2: Interpretation of Section 35F regarding mandatory pre-deposit
The respondent opposed the appellant's applications, emphasizing the requirement of depositing 7.5% or 10% of the duty and penalty imposed under the impugned order for filing appeals before the Tribunal. The respondent cited the language of Section 35F, which mandates that the Tribunal shall not entertain any appeal without the specified mandatory pre-deposits. The respondent also referred to a CESTAT circular clarifying the payment of mandatory deposits and highlighted the need for individual pre-deposits for each appeal.

Issue 3: Applicability of previous judgments under un-amended provisions
The Tribunal analyzed previous judgments cited by the appellant but concluded that those decisions were not applicable as they were delivered under the old, un-amended provisions of Section 35F. The Tribunal emphasized that the amended Section 35F now requires a pre-deposit of 7.5% or 10% of the duty or penalty imposed under the impugned order for hearing appeals.

Issue 4: Requirement of individual pre-deposits for separate appeals
After considering the arguments and legal provisions, the Tribunal dismissed all the miscellaneous applications filed by the appellants. The Tribunal directed the appellants to make the mandatory pre-deposit as per Section 35F within one month from the date of receipt of the order. Failure to comply would result in the dismissal of their appeals. The Tribunal emphasized the need for individual pre-deposits for each separate appeal, as per Rule 6A of CESTAT (Procedure) Rules, 1982.

In conclusion, the Tribunal upheld the requirement of mandatory pre-deposit under Section 35F and emphasized the individual nature of pre-deposits for separate appeals, dismissing the appellant's request for waiver based on previous judgments under un-amended provisions.