2015 (10) TMI 699 - HC - Central Excise

Waiver of pre deposit - Mandatory pre deposit - Held that - Appellant has been directed to deposit an amount of ₹ 2.00 crores in addition to the amount of ₹ 45.00 lacs already deposited while ordering stay of the balance amount of duty, penalty and interest. We may not disagree entirely with the discretion exercised by the Tribunal but as the Tribunal has found a prima facie case, the amount of pre-deposit assessed by the Tribunal is too steep and may render the right to agitate the appeal illusory. It would be appropriate to point out that Legislature has, during pendency of the appeal, amended Section 35F of the Act by requiring an assessee to deposit 7.5% of the duty demanded. The amendment may not apply to the appellant as the appeal was filed before the amendment but taking a clue from legislative intent, modify the order passed by the Tribunal - Partial stay granted.

Summary

Issues:
Challenge to pre-deposit order by Customs, Excise & Service Tax Appellate Tribunal - Applicability of amended Section 35F of the Central Excise Act, 1944 - Reduction of pre-deposit amount - Prima facie case determination by Tribunal.

Analysis:
The appellant challenged the order of the Customs, Excise & Service Tax Appellate Tribunal directing a pre-deposit of Rs. 2.00 crores for the hearing of its appeal. The appellant argued that the statute does not mandate a specific pre-deposit amount, emphasizing the need for the Tribunal to consider a prima facie case or hardship. The appellant contended that the pre-deposit amount was excessive, depriving them of the right to an appellate hearing. Additionally, the appellant highlighted the amendment to Section 35F of the Act, introducing a 7.5% pre-deposit requirement post-appeal filing. The appellant requested a reduction in the pre-deposit amount based on these grounds.

The Revenue's counsel countered that the amended Section 35F did not apply retroactively to the appellant's appeal filed before the amendment. The Revenue argued that the Tribunal had already provided adequate relief to the appellant after a comprehensive review of the case. Therefore, the Revenue opposed any further reduction in the pre-deposit amount demanded by the Tribunal.

Upon reviewing the arguments and the impugned order, the High Court noted that the appellant, a commercial plywood manufacturer, had been directed to deposit Rs. 2.00 crores in addition to the Rs. 45.00 lacs already paid. While acknowledging the Tribunal's discretion, the High Court found the pre-deposit amount excessive, potentially hindering the appellant's right to appeal. Drawing from the legislative intent behind the amendment to Section 35F, the High Court modified the Tribunal's order. The High Court directed the appellant to pay Rs. 1.25 crores (minus the amount already paid) within three weeks, staying the recovery of the remaining duty, penalty, and interest amount during the appeal.

In conclusion, the High Court disposed of the matter by modifying the pre-deposit amount, considering the appellant's prima facie case and the legislative intent behind the amended Section 35F, ensuring a fair balance between the appellant's right to appeal and the financial obligations imposed.