2015 (5) TMI 837 - HC - Central Excise

Stay application - Mandatory pre deposit - Section 35F - Held that - During the pendency of proceedings or after the order passed by the adjudicating authority, if the law is amended and a condition of pre-deposit is also amended in Section 35F of the Central Excise Act, the appellant would have to comply with the provisions as the amended provisions would apply to all the appeals which are filed after coming into force of the amended Act. - appeal of the appellant before the CESTAT would not be maintainable in absence of deposit of an amount equivalent to 7.5% of the confirmed amount of duty liability. The other aspect of the matter is that if the argument of the learned counsel for the petitioner is accepted then he is required to pre-deposit 100% of the excise duty levied on him as he has not filed any waiver application under the old provision before the Tribunal exempting him from making any pre-deposit. The Legislature has granted benefit to the assessees by fixing pre-deposit equivalent to 7.5% or 10% of the confirmed amount of duty liability as per the provisions of Section 35F of the Central Excise Act, 1944. Therefore, we do not find any illegality in the impugned order passed by the Tribunal. - Decided against Assessee.

Summary

Issues:
1. Challenge to the impugned order dated 10.11.2014 passed by the Tribunal, West Zonal, Ahmedabad.
2. Interpretation of the amended Section 35F of the Central Excise Act, 1944.
3. Compliance with the provisions of Section 35F regarding pre-deposit requirements.
4. Applicability of the amended provisions to appeals filed after the enactment.
5. Requirement of pre-deposit under the old provision for waiver application.

Analysis:

1. The petitioner challenged the order dated 10.11.2014 passed by the Tribunal, which rejected the appeal and stay application due to non-compliance with the amended Section 35F of the Central Excise Act, 1944. The Tribunal required a deposit equivalent to 7.5% of the confirmed duty liability, which the appellant failed to fulfill, leading to the dismissal of the appeal and stay application.

2. The petitioner argued that the amended Section 35F came into effect from 6.8.2014, post the adjudicating authority's order on 30.5.2014. The amended provision mandates a deposit of 7.5% of the duty liability. The Court noted that the amended provisions apply to appeals filed after the enactment, and non-compliance renders the appeal not maintainable.

3. The Court highlighted the necessity for compliance with the amended Section 35F, emphasizing that the appellant must adhere to the revised pre-deposit requirements. Failure to meet the 7.5% deposit condition renders the appeal unsustainable under the amended Act, irrespective of the proceedings' timeline.

4. Regarding the applicability of the amended provisions, the Court clarified that post-amendment, all appeals must adhere to the updated pre-deposit conditions. The petitioner's failure to comply with the revised provisions resulted in the dismissal of the appeal by the Tribunal, a decision upheld by the Court.

5. The Court addressed the argument concerning the old provision for waiver application, noting that the petitioner did not file any waiver application exempting them from pre-deposit under the previous regulation. The legislative intent behind fixing pre-deposit percentages at 7.5% or 10% was to benefit the assessees, and the Court found no irregularity in the Tribunal's decision. Consequently, the writ petition was dismissed.