2019 (3) TMI 1425 - HC - Central Excise

Maintainability of appeal - non-compliance with mandatory pre-deposit - section 35F of the Central Excise Act, 1944 - Held that - Since the petitioner did not deposit the compulsory pre-deposit as required under section 35F of the Central Excise Act, 1944 (hereinafter referred to as the Act‟), the appeal preferred by the petitioner was dismissed - Section 35F of the Act provides that the Appellate Tribunal shall not entertain any appeal against the decision or order passed by the Commissioner of Customs, Central Excise and Service Tax, unless the appellant has deposited seven and a half per cent of the duty and penalty as imposed. In the case of the petitioner, while filing the appeal before the Appellate Tribunal, the petitioner did not deposit the amount as required by Section 35F of the Act. Therefore, the learned Appellate Tribunal has not committed any error in dismissing the appeal. Petition dismissed.

Summary

Issues:
1. Failure to deposit compulsory pre-deposit under Section 35F of the Central Excise Act, 1944.
2. Dismissal of appeal by the Customs, Excise & Service Tax Appellate Tribunal, Kolkata.
3. Petitioner's argument regarding penalty deposit and appeal dismissal.

Analysis:
1. The petitioner, a registered partnership firm engaged in manufacturing industrial chemicals, received a show cause-cum-demand notice in 2016 from the Commissioner of Customs, Central Excise and Service Tax. Subsequently, an order imposing penalty and directing payment of the demand was issued in 2017. The petitioner's appeal to the Appellate Tribunal was dismissed due to non-compliance with the compulsory pre-deposit requirement under Section 35F of the Act.

2. The Appellate Tribunal's decision to dismiss the appeal was based on the mandatory nature of the pre-deposit requirement as per the statute. The Tribunal emphasized that the appellant failed to make the necessary deposit, rendering the appeal non-maintainable. The Tribunal's order clearly stated the dismissal of the appeal and the subsequent dismissal of the Miscellaneous Application (COD).

3. The petitioner argued that the penalty could not be deposited due to receiving the notice after the appeal hearing date. However, the Court found this argument baseless as the petitioner initiated the appeal and was aware of the hearing date. Despite the petitioner's counsel indicating willingness to rectify the deficiency, no action was taken to deposit the required amount. Section 35F of the Act mandates a deposit of duty and penalty for entertaining an appeal, which the petitioner failed to comply with, leading to the dismissal of the appeal by the Appellate Tribunal. Consequently, the writ petition filed by the petitioner was dismissed by the Court.