2023 (9) TMI 1488 - AT - Central Excise

Maintainability of appeal - non-fulfilment of mandatory compliance of Section 35F CEA - HELD THAT - Admittedly, the said amount of duty stands paid to the extent @ Rs. 750 PMT. Apparently and admittedly the said amount is more than the amount of 7.5% of the amount as is required for pre-deposit in terms of Section 35F of the Central Excise Act. As apparent from verification report, it has been verified by the department itself that the burden of said amount of duty has been borne by the appellant itself. Irrespective of the issue about the liability towards the impugned amount of duty, whether it was of the buyer of molasses i.e. the appellant or it was of the khandsari unit i.e. the manufacturer of molasses, the fact remains is that the requisite amount stands already deposited with the department. The amount of duty which stands already paid has been held to be as good as the amount of pre-deposit. There are no reason to differ from the findings that appellant cannot denied of being heard on merits in any appeal where more than 7.5% of the amount required for pre-deposit has already been recovered by the department though not from the appellant, but from its khandsari unit. Resultantly, it is held that since the amount of pre-deposit stands already paid, there is no such defect. Registry is, therefore, directed to register the appeal and to list the same in due course.

Summary

Issues: Liability of duty, compliance with Section 35F of Central Excise Act, pre-deposit requirement for appeal

The judgment pertains to a case where the appellant challenged the order confirming the liability of duty demanded in a show cause notice. The Departmental Representative argued that the duty was the appellant's liability, and non-payment led to the demand confirmation. The representative highlighted the mandatory pre-deposit requirement under Section 35F of the Central Excise Act. However, the Verification Report confirmed that the duty burden was borne by the appellant. The appellant contended that the entire demanded amount was already deposited with the department, fulfilling the pre-deposit condition for appeal. The appellant cited various legal precedents to support their argument, emphasizing that the deposited amount sufficed for the pre-deposit requirement.

After hearing both parties, the Tribunal noted that the confirmed duty amount was paid by the appellant and exceeded the 7.5% pre-deposit requirement specified in Section 35F. The Verification Report verified that the duty burden was on the appellant, regardless of the actual liability. The Tribunal concluded that the deposited amount was equivalent to the pre-deposit, based on which the appellant should not be denied a hearing on merits. The Tribunal referenced the legal precedents cited by the appellant to support its decision. Consequently, the Tribunal held that since the pre-deposit amount was already paid, there was no deficiency. The Tribunal directed the Registry to register the appeal for further proceedings, as the pre-deposit condition was met, and the necessary documents were submitted to address any outstanding defects.

In summary, the judgment addressed the issue of duty liability, compliance with Section 35F of the Central Excise Act, and the pre-deposit requirement for appeal. The Tribunal ruled in favor of the appellant, emphasizing that the duty amount was paid, exceeding the pre-deposit threshold, and thus, the appeal should proceed without any deficiencies.