2015 (7) TMI 137 - HC - Central Excise

Waiver of pre deposit - quantum of amount to be deposited - Held that - The circular dated 16.09.2014 was issued on the same day when the impugned order was passed. It becomes operative from the date it was issued and, accordingly, the appellant was only required to pay 10% of the duty or penalty in pursuance to the decision for filing an appeal against the order of the Commissioner (Appeal). We are, prima face, of the opinion that in view of the circular dated 16.09.2014, the appellant was required to deposit only 10% of the amount of duty i.e. ₹ 1,72,17,199/-. Since the appellant has already deposited ₹ 11,00,000/-, the differential amount is required to be deposited by him. - Decided partly in favour of assessee.

Summary

Issues:
1. Interpretation of Section 35F of the Central Excise Act and Finance Act, 1994.
2. Consideration of prima facie case, undue hardship, and balance of convenience by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT).
3. Application of circular issued by the Central Board of Excise & Customs regarding pre-deposit requirements.
4. Calculation of the amount to be deposited by the appellant for filing an appeal.
5. Stay of the order dated 16.09.2014 by CESTAT pending the deposit by the appellant.

Analysis:
1. The judgment involves the interpretation of Section 35F of the Central Excise Act and the Finance Act, 1994. The appellant was directed to deposit a specific amount by the Service Tax Authorities under Section 35F. The appellant argued that CESTAT did not consider the prima facie case, undue hardship, and balance of convenience while deciding the application under Section 35F. Reference was made to a Supreme Court decision outlining principles for such considerations.

2. The appellant highlighted a circular issued by the Central Board of Excise & Customs on the same day as the impugned order, which provided for a deposit of only 10% of the duty demanded or penalty imposed by the Commissioner (Appeal) for filing an appeal. The court observed that the circular became operative from the date of its issue, and the appellant was required to pay only 10% of the duty, amounting to a specific sum. The court clarified that penalties imposed by the Order-in-Original should not be considered while calculating the deposit amount.

3. Notice was issued to the respondents, with service directed to the counsel representing the Central Excise Department. The matter was scheduled for a hearing on a specific date. The court ordered that the effect and operation of the order dated 16.09.2014 by CESTAT would remain stayed if the appellant deposited 10% of the duty within a month, excluding interest and penalty, after adjusting the amount already deposited during the investigation. Failure to comply would result in the enforcement of the entire demand against the appellant.