2020 (7) TMI 87 - AT - Central Excise

Maintainability of appeal - requirement to make pre-deposit - Section 35F of Central Excise Act - HELD THAT - Section 35F requires cash deposit of 7.5% of the dues and there is no provision for adjustment of any other security. Tribunal being a creature of the Act is bound by the provisions of the Act and has no powers or jurisdiction to convert the mandate of Section 35F into any other act. As such, for entertaining the appeals appellants are required to deposit the amounts in terms of Section 35F. At this stage, learned advocate submits that his clients have no finance to deposit the amount in question even if some more time is given to them. He accordingly prays that the appeals may be disposed of as not maintainable for non-compliance of Section 35F. Appeal dismissed as not maintainable.

Summary

Issues:
1. Disposal of Stay Petition filed by the appellants.
2. Requirement of deposit under Section 35F of the Central Excise Act.
3. Consideration of attached premises as deposit.
4. Financial inability to deposit the required amount.
5. Dismissal of appeals for non-compliance with Section 35F.

Issue 1: The judgment addresses the non-disposal of Stay Petition filed by the appellants despite the demand of duty of Excise amounting to approximately ?6.57 crores confirmed against one appellant, with an identical penalty imposed. Another appellant faced a similar penalty under Rule 26 of Central Excise Rules, 2002. The Tribunal emphasized that Stay Petitions must be resolved before the appeal is disposed of, highlighting the necessity of addressing pending matters promptly.

Issue 2: The judgment discusses the amendment to Section 35F of the Central Excise Act in August 2014, mandating appellants to deposit 7.5% of confirmed dues for their appeal to be heard by the Tribunal. The Tribunal noted that several High Courts have applied the amended provisions retrospectively to pending Stay Petitions. Consequently, the appellants were required to deposit 7.5% of the confirmed dues as per Section 35F.

Issue 3: The judgment deliberates on the appellant's proposal to consider the attached premises of one appellant as a deposit in lieu of the required amount under Section 35F. However, the Tribunal clarified that Section 35F necessitates a cash deposit of 7.5% without provision for alternative security adjustments. The Tribunal stressed its obligation to adhere to statutory provisions, thereby rejecting the proposed adjustment.

Issue 4: The judgment acknowledges the appellant's financial constraints preventing the deposit of the required amount even with additional time. Despite the plea for further consideration, the Tribunal maintained that the appeals could not be deemed maintainable due to non-compliance with Section 35F, reflecting the importance of adhering to statutory requirements.

Issue 5: In light of the appellant's admission of non-payment due to financial constraints, the Tribunal dismissed the appeals for being non-maintainable. Consequently, the Stay Petitions and Miscellaneous applications were also disposed of, underscoring the significance of compliance with statutory provisions for appeal eligibility.