2017 (9) TMI 703 - HC - Central Excise

100% EOU - Maintainability of appeal - pre-deposit - Appellant had not deposited 7.5% as required u/s 35F of the CEA, 1944 - Held that - the Respondent always has discretion to appropriate the amount recovered against particular dues. We find that the Appellate Tribunal has justifiably considered that for the amount of ₹ 5,15,10,018/- is recoverable for which the concerned Appeal had been filed by the Appellant before the Appellate Tribunal, no amounts had been appropriated. From the total amount recoverable of ₹ 6,65,65,049/- for the period 2005 till 2010, only a sum of ₹ 36.58 lakhs had been recovered - there is no infirmity in the impugned order which has held that since the amount of 7.5% has not been deposited as mandated u/s 35F of the CEA, the Appeal is not maintainable - appeal dismissed being not maintainable.

Summary

Issues: Challenge to order of Customs, Excise & Service Tax Appellate Tribunal for non-maintenance of 7.5% deposit under Section 35F of the Central Excise Act.

Detailed Analysis:
1. The Appellant, a 100% Export Oriented Unit, challenged an order by the Customs, Excise & Service Tax Appellate Tribunal for non-maintenance of the required 7.5% deposit under Section 35F of the Central Excise Act. The Tribunal held the Appeal to be not maintainable due to the Appellant's failure to deposit the required amount, resulting in the dismissal of the Appeal.

2. The Appellant, engaged in manufacturing Terry Towels, had obtained licenses under the Customs Act for operating a bonded warehouse and carrying out "in bond manufacturing." The Central Government, through a notification, exempted certain products manufactured by 100% EOU from Central Excise Duty if specific conditions were met. Show Cause notices were issued to the Appellant for alleged deferential Excise Duty, which were subsequently dropped after adjudication. The department appealed to the Commissioner (Appeals), who upheld the original orders. The Appellate Tribunal later set aside the findings and remitted the case for fresh decision. The Appellant faced challenges in the proceedings due to a lockout and lack of notice receipt.

3. The Appellant, aggrieved by an order-in-original confirming demands and penalties, appealed to the Appellate Tribunal seeking waiver of pre-deposit. The Tribunal found the transferred amount towards recovery insufficient as per Section 35F requirements, leading to the dismissal of the Appeal for non-maintenance of the 7.5% deposit.

4. The Appellant argued that the transferred amount met the 7.5% deposit requirement under Section 35F, emphasizing compliance with the Act. The impugned order was challenged for disregarding the transferred amount towards recovery.

5. The Court observed the total recoverable amount and the specific amount for the Appeal, noting the discretion in amount appropriation. It found no error in the Tribunal's decision, as the required 7.5% deposit was not made, rendering the Appeal not maintainable. The dismissal of the Appeal was upheld based on non-compliance with Section 35F.

6. The Appeal was ultimately dismissed with no costs awarded, affirming the Tribunal's decision regarding the non-maintenance of the 7.5% deposit under Section 35F of the Central Excise Act.

This detailed analysis highlights the legal journey of the Appellant's challenge, the regulatory framework, and the Court's reasoning in upholding the dismissal of the Appeal due to non-compliance with the deposit requirements under Section 35F of the Central Excise Act.