2016 (7) TMI 125 - HC - Central Excise

Waiver of pre-deposit - validity of order directing 50% amount to be deposited - As per the amendment by the Finance Act, 2014 the pre-deposit is kept limited to 7.5% of the demand to maintain an appeal - scope of section 35F - Held that - Taking into consideration the legislative intent in making amendment in the year 2014, we find that due to the condition of predeposit and discretion given to the Commissioner/ CESTAT to grant exemption, the hearing of the appeals has been delayed. To overcome with that difficulty, amendment was brought through the Finance Act, 2014. The condition of pre-deposit of 7.5% of the amount of duty without any provision for exemption has been provided. It is to avoid any litigation on the issue of pre-deposit so that hearing of the appeals can be expedited. Taking into consideration the aforesaid and the orders passed by this court in the cases referred above, we are of the opinion that the orders passed by the Commissioner/ CESTAT need interference. Thus, taking into consideration the facts available on record, we are of the opinion that on deposit of 15% of the amount of duty or the penalty, as the case may be, appeals would be heard by the Commissioner/ CESTAT. The amount of 15% of the duty or the penalty, as the case may be, would be deposited within a period of one month from today. - Decided partly in favor of appellant.

Summary

Issues:
Challenge to second proviso to section 35-F of the Central Excise Act, 1944; Validity of orders passed by Commissioner/CESTAT on applications for exemption from pre-deposit.

Analysis:
1. The writ petitions challenged the second proviso to section 35-F of the Central Excise Act, 1944, while the connected appeals contested the orders issued by the Commissioner or CESTAT. The petitioners did not press the challenge to the second proviso due to an alternative prayer to make the pre-deposit condition reasonable. The Finance Act, 2014 limited the pre-deposit to 7.5% of the demand to maintain an appeal.

2. The court considered the alternative prayer and noted that the pre-deposit condition existed before the amendment, allowing exemptions upon application by the assessee. However, the Commissioner/CESTAT directed deposit amounts higher than the Finance Act, 2014 provision, leading to delays in appeals' hearings.

3. The assessee's counsel sought directions similar to previous cases where interim orders required a 7.5% pre-deposit for appeal hearings. The Union of India supported the second proviso to section 35-F, while the revenue's counsel upheld the Commissioner/CESTAT's orders granting reasonable exemptions.

4. The court did not accept the challenge to the second proviso but focused on the orders granting exemptions from pre-deposit. Considering the legislative intent behind the 2014 amendment to expedite appeal hearings, the court decided that a 15% pre-deposit of duty or penalty would suffice for appeal hearings, modifying the impugned orders accordingly.

5. Non-compliance with pre-deposit orders led to the dismissal of some appeals, which could be restored upon depositing the 15% amount within a month. Appeals where the amount was already deposited in excess would proceed without additional pre-deposit requirements. The judgment was to be placed in all relevant files for reference.