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2018 (2) TMI 1797 - AT - Central ExciseMaintainability of appeal - non-Compliance with pre-deposit on the part of Director - case of Revenue is that Director being a separate legal entity against whom penalty has been imposed, is required to make separate pre-deposit in terms of Section 35F - Held that - Under Section 35F of the Central Excise Act, payment of deposit at the rate of 7.5% of the demand is mandatory before the appeal can be entertained - the Private Limited Company as well as its Directors are to be considered as separate entities and since separate penalties have been imposed, the Director is required to make a pre-deposit of 7.5% of the penalty imposed on him before the appeal filed by him can be entertained - application dismissed.
Issues:
1. Whether the Director is required to make a separate pre-deposit in terms of Section 35F of the Central Excise Act? Analysis: The case involved a miscellaneous application filed against an Order-in-Original confirming a demand for Customs Duty along with penalties and interest. The adjudicating authority had imposed a penalty on the Director of the company in addition to the demand on the company. The Director argued that since the company had already made a deposit, he should be exempt from making a separate deposit. The contention was opposed by the Departmental Representative, stating that the Director, as a separate legal entity, is required to make a separate pre-deposit as per Section 35F. Upon considering the submissions, the Tribunal noted that under Section 35F of the Central Excise Act, a deposit of 7.5% of the demand is mandatory before an appeal can be entertained. The Tribunal emphasized that the Private Limited Company and its Directors are distinct legal entities, and since separate penalties were imposed, the Director must make a pre-deposit of 7.5% of the penalty imposed on him for his appeal to be considered. Accordingly, the Tribunal dismissed the miscellaneous application but granted the Director a four-week period to make the necessary pre-deposit. It was specified that compliance with the pre-deposit requirement would result in the appeal being listed along with the company's appeal. The compliance deadline was set for 15-3-2018, and the order was pronounced in open court on 12-2-2018.
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