2013 (6) TMI 652 - HC - Central Excise

Appeal against the stay order of CESTAT directing the appellant to made predeposit of Rs. 60 Lakhs - Held that - Having carefully gone through the judgment of the Division Bench in M.I.Metal Sections Pvt. Ltd s case 1994 (10) TMI 67 - HIGH COURT OF KARNATAKA AT BANGALORE , we respectfully disagree with the opinion expressed by the Division Bench of the Kerala High Court. According to us, the condition prescribed under Section 35F of the Act that the person desirous of appealing against the order shall deposit the duty demanded or the penalty levied is mandatory. However, the power to dispense with such condition has been conferred on the CESTAT only where it is satisfied that the deposit of the duty demanded or penalty levied would cause undue hardship to such person. Such discretion has already been exercised by the CESTAT and an order came to be passed on 13.04.2011. The said order has also been upheld by this Court in W.P.Nos.14260 of 2011 and 14329 of 2011. Therefore, according to us, it is not open to the appellants to reagitate the issue. It is also relevant to note that when the appeals were taken up by the CESTAT on 04.02.2013, the appellants did not say that they were under financial crisis nor there was any plea about the hardship being faced by them to comply with the condition under Section 35F of the Act. - Decided against the assessee.

Summary

Issues:
Appeals under Section 35G of the Central Excise Act, 1944 against the order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) - Non-compliance with pre-deposit condition under Section 35F of the Act - Dismissal of appeals by CESTAT - Interpretation of mandatory pre-deposit requirement and discretion of CESTAT - Consideration of financial difficulties as a ground for non-compliance.

Analysis:

The judgment concerns appeals filed under Section 35G of the Central Excise Act, 1944, challenging the order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). The appellants failed to comply with the pre-deposit condition under Section 35F of the Act, leading to the dismissal of the appeals by CESTAT. The appellants contended that financial difficulties prevented them from fulfilling the pre-deposit requirement, urging reconsideration based on a decision of the Karnataka High Court. However, the Court disagreed, emphasizing the mandatory nature of the pre-deposit condition unless undue hardship is established by the appellant. The CESTAT had already exercised its discretion in this regard, and the Court upheld its decision in previous writ petitions.

The Court highlighted that the appellants did not raise financial difficulties during the appeal hearing before CESTAT, and revisiting the issue would essentially amount to reviewing the previous court orders. The judgment stressed that the pre-deposit requirement is crucial, and the CESTAT rightfully dismissed the appeals without delving into the case's merits. The Court concluded that no substantial legal questions warranted its intervention in the matter, leading to the dismissal of both appeals without costs. Any pending miscellaneous petitions related to these appeals were also ordered to be closed accordingly.