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2019 (9) TMI 1104 - HC - Central ExciseMaintainability of appeal - requirement with the pre-deposit - Section 35F of the Central Excise Act, 1944 - HELD THAT - A reading of Section 35F of the Central Excise Act reveals, by the usage of the peremptory words shall not therein, that there is an absolute bar on the CESTAT entertaining any appeal, under Section 35 of the said Act, unless the appellant has deposited 7.5 % of the duty confirmed against it by the authority below - The two provisos in Section 35F relax the rigour of this command only in two respects, the first being that the amount to be deposited would not exceed ₹ 10 crores, and the second being that the requirement of pre-deposit would not apply to stay applications or appeals pending before any authority before the commencement of the Finance (No.2) Act, 2014, i.e. before 6th August, 2014. The prayer of the petitioner for being permitted to prosecute its appeal before the CESTAT without complying with the condition of mandatory pre-deposit, cannot be granted - Petition dismissed.
Issues Involved:
1. Application for exemption. 2. Mandatory pre-deposit requirement for filing an appeal before CESTAT. 3. Applicability of amended Section 35F of the Central Excise Act, 1944. 4. Judicial precedents and their applicability to the case. Issue-Wise Detailed Analysis: 1. Application for Exemption: - The court allowed the exemption application subject to all just exceptions and disposed of the application accordingly. 2. Mandatory Pre-Deposit Requirement for Filing an Appeal Before CESTAT: - The petitioner sought a writ of mandamus to direct the respondent to entertain their appeal without requiring a pre-deposit of 10% of the duty amounting to ? 56,40,646/-. - The court noted that the statute already waived 92.5% of the duty demanded, and further waiver was not permissible as the law itself is the highest charitable entity. 3. Applicability of Amended Section 35F of the Central Excise Act, 1944: - The court referenced the amendment effective from 6th August 2014, which mandates a pre-deposit of 7.5% of the duty for appeals. - The court cited the Division Bench decision in Anjani Technoplast Ltd. v. Commissioner of Customs, which clarified that the amended Section 35F applies to all appeals filed on or after 6th August 2014, irrespective of when the show cause notice was issued. - The court emphasized that the amended Section 35F would apply to all appeals filed on or after the amendment date, and the requirement of pre-deposit is mandatory. 4. Judicial Precedents and Their Applicability to the Case: - The court reviewed several judgments, including Ganesh Yadav v. U.O.I., Fifth Avenue Sourcing (P) Ltd. v. Commissioner of Service Tax, and Sri Satya Nand Jha v. Union of India, which supported the applicability of the amended Section 35F. - The court highlighted that the judgment in Anjani Technoplast had been upheld by the Supreme Court, resulting in a merger of the High Court's judgment with the Supreme Court's order, thus making it binding. - The court noted that other judgments like Pioneer Corporation v. Union of India, Shubh Impex v. Union of India, and Manoj Kumar Jha v. DRI, which allowed partial pre-deposits, did not consider the binding precedent set by Anjani Technoplast. - The court concluded that allowing the appeal without the mandatory pre-deposit would violate the statutory requirements and reduce the legislative command to a dead letter. Conclusion: - The court dismissed the writ petition, stating that the petitioner must comply with the mandatory pre-deposit requirement to prosecute its appeal before the CESTAT. - The court reaffirmed the binding nature of the precedent set by Anjani Technoplast, which mandates compliance with the amended Section 35F for appeals filed after 6th August 2014.
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