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TMI Blog1987 (9) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of appeal filed by the appellants to the Tribunal be not dismissed. In response to this notice the appellants through their Counsel Shri I.C. Upadhyaya have filed reply, dated 27-7-1987. In this reply it is submitted that the entire period 4-4-1984 to 29-4-1984 relating to gate pass No. 194, dated 4-4-1984 to 301, dated 29-4-1984, amounting to Rs. 1,82,204.55 is covered by Notification No. 246/85-C.E., dated 6-1-1985. The reply further states that the respondent has no locus standi or jurisdiction to demand this differential duty in view of this notification issued under Section 11C of the Act. The reply further states by virtue of above notification there is no liability cast on the appellants to deposit the amount demanded by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of bank guarantee. The main ground urged for modification was Notification No. 246/85-C.E., dated 6-12-1985 (there was no request for extension of time to comply with the order). By Order No. 49/87-C after hearing Shri Upadhyaya, Advocate in support of the application and Shri Sundar Rajan, J.D.R. for the respondent, the Tribunal rejected the prayer for modification of Stay Order No. 224/85-C, dated 20-12-1985 on the ground that stay order calling upon the appellants to furnish bank guarantee had been passed after taking into consideration the notification and there was no change in circumstances to justify modification of the stay order. The present notice was then ordered to issue to the appellants. 4. Section 35F of Central Excises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product, falling under Item No. 13 of the First Schedule to the said Act, were liable to a higher amount of duty of excise in terms of the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 259/83-Central.Excises, dated the 15th October, 1983, than what was levied with reference to the rate specified in the said First Schedule, read with any notification for the time being in force issued by the Central Government in relation to the duty of excise so chargeable, during the period commencing on the 15th October, 1983 and ending with the 29th April, 1984. Now, therefore, in exercise of the powers conferred by Section 11C of the said Act, read with sub-section(4) of Section. 55 of the Finance Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of vegetable product but for the said practice on which that portion of the said duty of excise and the special duty of excise were short levied during the period aforesaid. Now what is the precise effect of this notification on the demand of duty confirmed against the appellants can be judged or determined only when the demand and the antecedent facts leading to it are examined in juxtaposition to the notification. This can be done only when the appeal is examined on its merits and for doing so the hurdle placed at the threshold by Section 35F of the Act has to be crossed by the appellants. The appellants have admittedly not deposited the duty nor complied with the Stay Order 224/85-C, dated 20.12.85. We have already said how the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eposit the duty or penalty before his appeal could be heard on merits, the proviso whittles down the rigour of sub-section (1). In this connection, it is to be noted that U/S 189 of the Sea Customs Act, 1978, it was obligatory on the part of an appellant to deposit the duty or penalty pending the appeal. There was no provision therein by which the appellate authority could waive the requirement regarding the deposit of the entire amount of duty or penalty. But in the Act by the proviso to sub-section (1) of Section 129, which has been quoted above, discretion has been given to the appellate authority to either waive the deposit of the entire amount of penalty or duty or reduce the quantum to be so deposited if the appellate authority is of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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