2023 (4) TMI 52 - HC - Central Excise

Maintainability of appeal - non-deposit of mandatory 7.5 % pre-deposit - Infringement of inherent right of appellant to file appeal or not - Section 35G of the Central Excise Act, 1944 - whether the tribunal is justified in insisting on mandatory pre-deposit when nothing was left with the appellant as all the assets and immovable property have been auctioned and the factory was under the orders of liquidation? - HELD THAT - Section 35F contains specific requirement with regard to the condition of pre-deposit of part of the amount for entertainment of appeal. Since the entertainment of appeal itself is dependent upon pre-deposit of amount specified in this act and there is no provision of exemption, the non compliance of such requirement would clearly render the appeal non-maintainable in law. For the appeal to be entertained, the appellant will have to deposit the amount in terms of the statue. The appellate authority would clearly be justified in refusing to entertain the appeal on account of the failure to deposit the mandatory pre-deposit under the statue. The contention advanced by the appellant that Section 35F is ultra virus also cannot be examined by this Court in exercise of its jurisdiction created under the statue itself. This Court is not exercising its Constitutional jurisdiction under Article 226 of the Constitution of India and being a creature of statue under the Act, the Court would have to abide by provisions contained therein - there is absolutely no error in the order passed by the appellant authority in refusing to entertain the appeal on account of mandatory non-deposit of the amount. The Division Bench judgment of this Court in the case of Writ Tax No. 750 of 2017 2017 (12) TMI 775 - ALLAHABAD HIGH COURT , also would not be of any help to the appellant because this Court was exercising its power under the writ jurisdiction and not under the statue. Appeal dismissed.

Summary

Issues involved:
Delay in filing appeal condonation, challenge under Section 35G of Central Excise Act, 1944 regarding pre-deposit requirement.

Delay Condonation Application:
Explanation for delay accepted, delay condoned, appeal treated as filed in time.

Challenge under Section 35G of Central Excise Act, 1944:
Appellant challenges tribunal's enforcement of Section 35F, deems it illegal and infringing on right to appeal. Appellant lacks resources for mandatory deposit, argues dismissal would cause grave injury. Appellant's familial relation to firm highlighted, reasons for non-deposit not considered. Reliance on previous orders and judgments for parity and exemption from pre-deposit condition.

Department's Position:
Appeal under Section 35F is statutory, conditions must be met for maintainability. Section 35F requirements outlined, reliance on precedent for mandatory pre-deposit. No substantial question of law for dismissal, statutory provision not challenged.

Judicial Analysis:
Court exercises appellate jurisdiction under Section 35G, appeal rejected for non-compliance with pre-deposit requirement in Section 35F. Non-deposit renders appeal non-maintainable, no exemption provision found. Court bound by statutory provisions, no error in refusal to entertain appeal without deposit. Previous orders and judgments not considered in appeal admission, lack of merit leads to dismissal.

Conclusion:
Appeal lacks merit, dismissed without prejudice to compliance with pre-deposit requirement. Appellant advised to comply with 7.5% deposit along with recall application for tribunal's consideration.