2018 (11) TMI 574 - AT - Service Tax

Waiver of mandatory pre-deposit - maintainability of application - Held that - The relevant provision for the purpose Section 73 (5) of Central Excise Act, 1944 has been amended w.e.f. 06/08/2014. Prior to the said amendment, the provision was giving a discretion to this Tribunal to consider the financial hardship and accordingly to determine the pre-deposit amount. However, post-amendment the said discretion has been curtailed and the pre-deposit of 7.5% of the demand confirmed has been made mandatory. Hon ble High Court of Allahabad in the case of Ganesh Yadav vs. Union of India 2015 (7) TMI 304 - ALLAHABAD HIGH COURT has held that the provisions of mandatory pre-deposit, as is stand post amendment Section 35F of the Finance Act, are not ultravires or unconstitutional. There is no direction for the Tribunal to order waiver of pre-deposit - application dismissed as not maintainable.

Summary

Issues:
1. Miscellaneous application for waiver of mandatory pre-deposit as per High Court order.
2. Discretion of Tribunal in determining pre-deposit amount pre and post-amendment.
3. Application of mandatory pre-deposit provision post-amendment.
4. Interpretation of High Court order regarding financial stability and pre-deposit waiver.

Analysis:
The judgment revolves around a miscellaneous application seeking waiver of mandatory pre-deposit in accordance with a High Court order. The appellant's consultant argued that the demand was confirmed before filing the appeal, while the respondent's representative emphasized the mandatory nature of the pre-deposit. The Tribunal noted an amendment to Section 73(5) of the Central Excise Act, 1944, which made the 7.5% pre-deposit mandatory post-amendment, removing the Tribunal's discretion in determining the amount. Referring to a case law, the Tribunal clarified that the amended provision is applicable to appeals filed after 06/08/2014, including the appellant's case. As per the High Court order, the Tribunal was not directed to waive the pre-deposit, but only to consider the financial stability of the appellant. Therefore, the Tribunal concluded that it cannot overlook the statutory mandate of the pre-deposit provision.

The judgment highlights the significance of the statutory amendment and the limitations it imposes on the Tribunal's discretion in waiving pre-deposit amounts. The Tribunal's decision was based on the legislative intent expressed in the amended provision, emphasizing the mandatory nature of the pre-deposit requirement. Despite the High Court order suggesting consideration of financial stability, the Tribunal clarified that its hands were tied due to the statutory mandate post-amendment. Consequently, the application for waiver was deemed not maintainable, and the appellant was granted a two-month period to fulfill the mandatory pre-deposit requirement. The case was scheduled for compliance review in early January 2019.