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TMI Blog2019 (1) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral registry, heard. 2. It is submitted by the applicant that an appeal was filed by the applicant against the order of Commissioner dated 28th February, 2015 vide which a demand of Rs. 1,52,99,438/- alongwith interest and penalty was confirmed. The said appeal was acknowledged by central registry on 10th June, 2018.. however, under the defect category for want of pre-deposit of 7.5% for entertaining the said appeal. Against the said objection, the appellant initially filed a Writ Petition before Hon'ble High Court of Rajasthan vide order dated 18th May, 2016. The Hon'ble Court directed the CESTAT to determine objections or decide. It is accordingly submitted that the mandatory provision of pre-deposit of 7.5% of duty is not applicable a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast vs. Commissioner Customs reported in 2015 (326) ELT 472. It is impressed upon that this is the decision of the High Court having jurisdiction upon this Tribunal. In addition, a decision of Hon'ble High Court of Mumbai in the case of Haresh Nagindas Vora vs. Union of India - 2017 (353) ELT 154 (Bom.) has been relied upon with the emphasis that the decisions relied upon by the applicant have duly been referred by these High Courts. The Application is accordingly prayed to be dismissed. 4. After hearing both the parties, we are of the opinion that the only question to be dealt with for the present Misc. Application is as to whether the amendment in Section 35F of the Central Excise Act would apply to the impugned appeal. The relevant Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore any appellate authority prior to the commencement of the Finance (No. 2) Act, 2014. 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 6 of the Cenvat Credit Rules, 2001 or the Cenvat Credit Rules, 2002 or the Cenvat Credit Rules, 2004. 5. The bare perusal makes it clear the wording is unambiguous. It opens with the words "the Tribunal or Commissioner (Appeals) as the case may be, shall not entertain any appeal unless the appellant deposits the percentage of demand a duty as is stipulated in clauses (i), (ii) of (iii) there under. The section further makes it clear that the amende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenge to a finalised demand of service tax passed in the year 2012. The learned Single Judge refused to entertain the writ petition since the Petitioner in that case had an effective statutory remedy before an appellate Tribunal. The High Court nevertheless stated that the appellate Tribunal would consider the application filed by the Petitioner for waiver of as pre-deposit on merits under the Finance Act, 1994 as it stood prior to the amendment introduced with effect from 16th August, 2014. With the greatest respect to the learned Single Judge who delivered the above decision it is not understood how, pursuant to the dismissal of the writ petition, any direction could have been issued as to how the interim application that might be sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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