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TMI Blog2017 (4) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... lant has to pay 10% mandatory deposit over and above the mandatory deposit of 7.5% of the duty liability/penalties, as the case may be, as provided under Section 35F of the Central Excise Act, 1944 and Section 129E of the Customs Act, 1962. The dispute arises due to different orders of the Tribunal more specifically, Delhi Bench of the Tribunal in the case of Balajee Structural (India) Pvt. Ltd. Vs. Commissioner of Central Excise, Raipur held impliedly deposit of 10% of the amount of duty and penalty as the case may be for preferring an appeal before the Tribunal against Commissioner (Appeals) order is inclusive of 7.5% deposited at the time of preferring appeal before the first appellate authority from the adjudication order, while the Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the CE Act, 1944. SECTION 3SF. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal. - The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal- (i) under sub-section (1) of section 35, unless the appellant has deposited seven and a half per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the (Principal Commissioner of Central Excise or Commissioner of Central Excise]; (ii) against the decision or order referred to in clause (a) of sub-Section (i) of section 358, unless the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osited seven and a half per cent. of the duty; in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in ispute, in pursuance of a decision or an order passed by an officer of customs lower in rank than the [Principal Commissioner of Customs or Commissioner of Customs]; (ii) against the decision or order referred to in clause (a) of sub-section (1) of section 129A, unless the appellant has deposited seven and a half per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against; (iii) against the decision or order referred to in clause (b) of sub-section (1) of section 129A, unless the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 7.5% of the duty confirmed or the penalty imposed as the case may be. This would mean that the first appeal can be entertained only deposit of such an amount and on conclusion of the proceedings, he has option to go further in appeal before first appellate authority or if the appeal is disposed of, amount pre-deposited by him which is equivalent to 7.5% of the duty confirmed or penalty imposed as the case may be, needs to be refunded in accordance with law. 6.2 As regards the second appeal preferred against the first appellate authority's order, the quantum of pre-deposit has been set at 10% instead of 7.5% of the duty confirmed or penalty imposed. In our view both the appellate proceedings i.e. before the first appellate authority a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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