2015 (11) TMI 370 - AT - Central Excise

Waiver of pre deposit - Mandatory pre deposit - Held that - This is an appeal filed after 6.8.2014 after the amendment of Section 35F. After the amendment of Section 35F, any appeal filed the Tribunal shall not entertain any appeal unless appellant deposits 7.5% of the duty. - Tribunal in their own case ordered predeposit in an identical issue. Therefore, appellants have not made out a prima facie case for waiver of predeposit as the Tribunal vide order dt. 8.1.2013 in the above case ordered for predeposit of ₹ 15 lakhs on the identical issue of denial of cenvat credit of distributed by the ISD on various input services including corporate office. The Tribunal in their order dt.26.8.2013 also ordered predeposit in their own case. - Following the same, Partial stay granted.

Summary

Issues:
1. Compliance with predeposit under amended Section 35F of the Central Excise Act.
2. Interpretation of the retrospective effect of amended provisions.
3. Merits of waiver of predeposit based on previous Tribunal orders.

Issue 1: Compliance with predeposit under amended Section 35F:
The appeals were filed after the amendment to Section 35F without complying with the predeposit requirement. The appellants argued that their appeals fell under the amended provisions of Section 35F and cited relevant High Court decisions to support their stance. The respondent contended that the appellants should have paid the predeposit as per the amended section. The Tribunal noted that the appeals were filed after the amendment and held that the amended provisions did not have retrospective effect but were prospective.

Issue 2: Interpretation of the retrospective effect of amended provisions:
The Tribunal referred to various High Court decisions to analyze the retrospective effect of the amended provisions. They highlighted a case where the High Court held that the relevant date for the accrual of the right of appeal is the date of initiation of assessment proceedings and not the decision itself. The Tribunal concluded that the amended provisions were not given retrospective effect and therefore should be applied prospectively.

Issue 3: Merits of waiver of predeposit based on previous Tribunal orders:
After examining the submissions and contentions of both parties, the Tribunal found that the appellants had not made out a prima facie case for waiver of predeposit. They noted that in a previous case involving the same appellants, the Tribunal had ordered predeposit on an identical issue. Therefore, the Tribunal directed the appellants to predeposit a specific amount within a given timeframe. Upon compliance, the predeposit of the remaining tax, interest, and penalty would be waived, and recovery stayed during the pendency of the appeals.

This detailed analysis of the judgment covers the issues of compliance with predeposit, interpretation of retrospective effect, and the merits of waiver of predeposit based on previous Tribunal orders.