2016 (11) TMI 1173 - AT - Central Excise

Pre-deposit - Section 35F (iii) - Maintainability of appeal - Held that - as clarity in this respect was lacking, according to the appellants, and it was set to rest only recently by the decision in ASR Multimetral Pvt. Limited 2016 (10) TMI 946 - CESTAT AHMEDABAD , we find it would be fair to grant liberty to the appellants to make the payment of 10% within two weeks from the date of receipt of this order and submit proof of the same to the Registry, in which case the appeals will stand restored - appeal not maintainable and is disposed off.

Summary

Issues: Non-payment of required deposit of 10% of duty/penalty as per Section 35F (iii) of Central Excise Act leading to the question of maintainability of appeals.

Analysis:
The judgment by the Appellate Tribunal CESTAT Ahmedabad involved the issue of non-payment of the required deposit of 10% of duty/penalty as mandated by Section 35F (iii) of the Central Excise Act. The Ld. Authorised Representative for Revenue contended that the appellants had not paid the necessary deposit, making the appeals not maintainable. The Division Bench had given time to the appellants to confirm compliance with the payment requirement. The appellants, through their counsel, expressed confusion regarding the payment amount, arguing that the issue was unclear to them. However, they acknowledged the recent decision by the Tribunal in a related case which clarified that the 10% deposit was indeed mandatory. Consequently, the appellants expressed willingness to make the payment shortly.

Upon careful consideration of the arguments and perusal of the records, the Tribunal referred to the decision in the matter of M/s. ASR Multimetals Pvt. Limited & Others vs. Commissioner of Customs. The Tribunal highlighted the unambiguous language of Section 35F (iii), emphasizing that the provision clearly required a deposit of 10% of duty/penalty for the appeal to be entertained. The Tribunal rejected any alternative interpretation and upheld the requirement of the 10% deposit based on established principles of statutory interpretation.

In light of the clear legal position established by the Division Bench's decision, the Tribunal concurred with the Ld. Authorised Representative for Revenue that the appeals were not maintainable due to the non-payment of the 10% deposit. However, recognizing the appellants' previous lack of clarity on the issue, the Tribunal granted them the opportunity to rectify the deficiency by allowing them to make the payment of 10% within two weeks from the date of the order. The appellants were instructed to provide proof of payment to the Registry, following which the appeals would be restored. Ultimately, the appeals were disposed of as not maintainable, with the Tribunal providing a pathway for their restoration upon compliance with the deposit requirement.