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TMI Blog2017 (9) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... lly 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 appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (for short the Act ) was amended by Finance Act No. 2 of 2014 with effect from 6.8.2014. It provided deposit of only 7.5% of the disputed amount as a condition precedent for entertaining the appeal. Therefore, the application of the petitioner to waive the pre-condition of depositing the entire disputed amount was wrongly rejected by the Tribunal. In view of the submission made above, the following question of law arises for consideration :- 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 ? In response to the above argument and the question, Sri Parv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing. Explanation. -- For the purposes of this section ''''duty demanded'' shall include, -- (i) amount determined under section 11D; (ii) amount of erroneous Cenvat credit taken; (iii) amount payable under rule 57CC of Central Excise Rules, 1944; (iv) amount payable under rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he [Principal Commissioner of Central Excise or Commissioner of Central Excise]; (ii) against the decision or order referred to in clause (a) of sub-section (1) of section 35B, unless the appellant has deposited seven and a half per cent, of the duty, in case where duty or duty and penalty are 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 35B, unless the appellant has deposit ten per cent, of the duty, in case where duty or duty and penalty are dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against; Provided that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. A Division Bench of the Rajasthan High Court in the case of Rajasthan State Industrial Development and Investment Corporation Ltd. Vs. Union of India and others, decided on 12.2.2015 placing reliance upon its earlier decision in the case of Paramount Security Vs. Union of India and others (Civil Misc. Writ Petition No.12232 of 2014, DB) held that the effect of the amendment to Section 35F of the Act cannot be restricted only to those appeals which are filed after 6.8.2014. It therefore held that the amended provisions of Section 35F of the Act would apply even to appeals filed prior to the above date otherwise it would result in discrimination. On the contrary, a Division Bench of Allahabad High Court vide its judgment and order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions 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. This apart, the Tribunal has observed that 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. In the aforesaid facts and circumstances, the question of law is answered in favour of the Revenue and against the assessee holding that the amended provisions of Section 35F of the Act are not applicable to the appeals filed prior to the date of enforcement of the amended provis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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