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2021 (12) TMI 480 - HC - Central ExciseMaintainability of appeal - non-compliance with the mandate of pre-deposit - Section 35-F of the Act - HELD THAT - As per sub-clause (1) to Section 35-F, it is made mandatory that the Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal if the appellant has not deposited 7 per cent of the duty demanded or 10% of the duty, as the case may be. If the deposit is not made by the appellant as mandated in the said section, the Commissioner or the Tribunal is justified in dismissing the same in limine. In this case, admittedly, the appellant has not remitted the pre-deposit as stated in Section 35-F of the Act. Even though the order of the CESTAT is sustained, the appellant is granted three months time from today to comply with the condition of payment as mandated under Section 35F of the Act - Appeal disposed off.
Issues:
Challenge to order of CESTAT for non-compliance with pre-deposit under Section 35-F of the Central Excise Act, 1944. Analysis: The appellant, a private limited company, contested the order of the CESTAT, South Zonal Bench, Bangalore dated 8.12.2017, which dismissed their appeal due to non-compliance with the pre-deposit requirement under Section 35-F of the Act. The appellant, engaged in biscuit manufacturing, had been penalized by the Additional Commissioner under the Central Excise Act, 1944, and subsequent appeals were rejected. The core issue revolved around whether the appeal could be entertained without fulfilling the pre-deposit mandate of Section 35-F. The appellant's counsel argued that since the original order and appeal predated the amendment introducing Section 35-F, the pre-deposit requirement should not apply retroactively. However, the respondent Revenue contended that compliance with the pre-deposit was mandatory post the introduction of Section 35-F by Act 25 of 2014. The provision required depositing a percentage of the duty demanded or penalty imposed for entertaining appeals, and failure to comply justified dismissal by the appellate authorities. Section 35-F explicitly mandated the deposit of a specified percentage of duty demanded or penalty imposed before appealing, failing which the Tribunal or Commissioner (Appeals) could not entertain the appeal. The appellant's failure to make the required pre-deposit led to the dismissal of the appeal by the CESTAT, which was deemed justified under the Act. Referring to a judgment by the High Court of Allahabad, the Court concurred that even if the show cause notice was issued before the enactment of the Finance Act 2014, Section 35-F(1) would still be applicable. The Court upheld the dismissal of the appeal by the CESTAT on technical grounds due to non-compliance with the pre-deposit requirement. Despite sustaining the CESTAT's order, the Court granted the appellant three months to fulfill the pre-deposit condition under Section 35-F. Once the deposit was made, the CESTAT was directed to expedite the appeal's consideration on its merits within six months. The judgment emphasized the importance of complying with statutory requirements for appeal consideration and the expeditious handling of cases. In conclusion, the Central Excise Appeal was disposed of with the directive for the appellant to make the necessary pre-deposit within the stipulated timeframe for the appeal to be re-evaluated on its merits by the CESTAT.
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