2017 (9) TMI 24 - HC - Central Excise

Stay/waiver of the pre-deposit - Section 35F of the Central Excise Act, 1944 - Whether the CESTAT is justified in rejecting the stay/waiver application of the appellant to waive the condition of pre-deposit of the entire disputed amount of the duty for entertaining the appeal under Section 35F of the Act? - Held that - deposit of the duty demanded under the impugned order or the penalty levied is a condition precedent for adjudicating the appeal but the said condition in a given case may be waived by the Appellate Tribunal - The second proviso to Section 35F of the Act, as amended, is very clear and it specifically excludes the appeals already filed and pending before the Appellate Authority from the applicability of the amended provisions of Section 35F of the Act - In view of the second proviso to the Section 35F of the Act would not apply to appeals which were filed prior to the enforcement of the amending Act and were pending on the date of its enforcement. There is no dispute to the fact that the appeal before the Tribunal was filed on 9.1.2014 much before Section 35F of the Act was amended and enforced. Therefore, the appeal filed by the appellant is to be governed by the un-amended provisions of Section 35F of the Act, which provides for the deposit of the entire disputed amount. Since the petitioner has not deposited the same, his appeal could not be heard on merits - t no case for any ground of stay/waiver of the deposit of the disputed amount is made out as the Revenue has a strong prima facie case in his favour meaning thereby that the chances of the success of the appellant in appeal are weak - appeal dismissed - decided against appellant.

Summary

Issues:
Interpretation of Section 35F of the Central Excise Act, 1944 regarding the deposit of disputed amount for entertaining an appeal.

Detailed Analysis:

The case involves a dispute arising from the rejection of an application for stay/waiver of the pre-deposit of the disputed amount of duty by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). The main contention raised by the appellant is based on the amendment to Section 35F of the Central Excise Act, 1944, which required a deposit of only 7.5% of the disputed amount as a condition for entertaining an appeal. The appellant argued that this provision, introduced by Finance Act No. 2 of 2014, should apply to their case, allowing them to waive the pre-deposit condition. On the other hand, the respondent contended that the amended provisions were not applicable to appeals filed before the enforcement of the amendment. The central question for consideration was whether CESTAT was justified in rejecting the stay/waiver application of the appellant regarding the pre-deposit condition under Section 35F of the Act.

The original Section 35F of the Act mandated the deposit of duty demanded or penalty levied as a condition for appealing against any order. However, the amended provision, introduced by Act No. 2 of 2014, required the deposit of a certain percentage of duty demanded or penalty imposed before filing an appeal. It also specified that these new provisions would not apply to stay applications and appeals pending before any appellate authority prior to the commencement of the Finance Act No.2 of 2014. The second proviso to the amended Section 35F explicitly excluded appeals filed and pending before the Appellate Authority from the application of the new provisions.

In analyzing the applicability of the amended Section 35F, the court referred to conflicting decisions from different High Courts. The Rajasthan High Court held that the amendment should apply to appeals filed before the enforcement date to avoid discrimination. Conversely, the Allahabad High Court, in a separate case, ruled that the amended provisions would not apply to appeals pending before the enforcement of the amendment, emphasizing the clear language of the statute. The court in the present case followed the Allahabad High Court's interpretation, stating that the amended provisions did not apply to appeals filed before the enforcement date.

Ultimately, the court held that since the appellant's appeal was filed before the amendment came into force, it would be governed by the un-amended provisions of Section 35F, requiring the deposit of the entire disputed amount. As the appellant failed to make this deposit, the appeal could not be heard on its merits. The Tribunal also noted that the Revenue had a strong prima facie case in its favor, indicating weak chances of success for the appellant. Consequently, the court dismissed the appeal, ruling in favor of the Revenue and holding that the amended provisions of Section 35F were not applicable to appeals filed before the enforcement of the amendment.