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TMI Blog2019 (9) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... permitted to prosecute its appeal before the CESTAT without complying with the condition of mandatory pre-deposit, cannot be granted - Petition dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... hud, Chief Justice, (as his Lordship then was), in Ganesh Yadav v U.O.I., 2015 (320) ELT 711 (All), in respect of which para 9 of the judgment of this Court observes as under: "9. Dealing with the specific question as to whether the amended Section 35F of the CE Act would apply to the case of the Assessee, the Allahabad High Court held that the words in the amended Section 35F indicated that on and after the date of its enforcement an Assessee in appeal was required to deposit the stipulated percentage of duty and if it failed to do so, the CESTAT shall not entertain the appeal. The amended Section 35F would, therefore, apply to all appeals filed on and from the date of the enforcement of the amended Section 35F of the CE Act……." (Emphasis supplied) 7. Taking stock of similar pronouncements in other cases, this Court proceeded to hold, on the question of applicability of the amended provisions of Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962, to cases in which the periods of dispute - and the date of issuance of show cause notice - were anterior to the amendment of the said provisions, thus (in paras 11 and 12 of the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 130 of the Act on or after 6th August, 2014." (Emphasis supplied) 8. The Division Bench of the High Court of Jharkhand, speaking through one of us (D.N.Patel, Chief Justice), also examined, in detail, the amendment of Section 35F of the Central Excise Act, in Sri Satya Nand Jha v. Union of India, 2016 SCC OnLine Jhar 22323. 9. Appreciating, inter alia, the judgment in Hossein Kasam Dada (supra), it was held, in para 31 of the judgment, thus: "31. In view of the aforesaid decision, endless litigations, arising out of waiver applications, have been brought to an end and looking to the very meager percentage of the amount to be deposited, Section 35F as amended cannot be said to be violative of Article 14 of the Constitution of India much less of Article 19(1)(g) of the Constitution of India. (xix) Thus, even if the show-cause notice has been issued prior to 6th August, 2014 or even if the Order-in-Original is passed prior to 6th August, 2014 or even if, the company and few of its Directors have preferred appeals prior to 6th August, 2014, but, if the left out Director prefers appeal on or after 6th August, 2014, looking to the second proviso to substituted Section 35F, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Civil Appeal, preferred against the said decision, also stood dismissed by the Supreme Court, as reported in Anjani Technoplast Ltd. v, CCE, 2017 (348) E.L.T A132 (SC). 14. Dismissal of a Civil Appeal, it is trite, results in merger of the judgment of the High Court, with the order passed by the Supreme Court and, thereby, elevates the judgment of the High Court to the status of the pronouncement of the Supreme Court. In this context, one may refer to the following passages from Kunhayamed v. State of Kerala, (2000) 6 SCC 359. "32. It may be that in spite of having granted leave to appeal, the Court may dismiss the appeal on such grounds as may have provided foundation for refusing the grant at the earlier stage. But that will be a dismissal of appeal. The decision of this Court would result in superseding the decision under appeal attracting doctrine of merger. But if the same reasons had prevailed with this Court for refusing leave to appeal, the order would not have been an appellate order but only an order refusing to grant leave to appeal. xxx xxx xxx 41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rable authorities, including, inter alia, Vice-Chancellor, University of Allahabad v. Dr. Anand Prakash Mishra, (1997) 10 SCC 264, A.B.Bhaskara Rao v. C.B.I, (2011) 10 SCC 259, Manish Goel v. Rohini Goel, (2010) 4 SCC 393 and State of Bihar v. Arvind Kumar, (2012) 12 SCC 395. 18. A reading of Section 35F of the Central Excise Act reveals, by the usage of the peremptory words "shall not" therein, that there is an absolute bar on the CESTAT entertaining any appeal, under Section 35 of the said Act, unless the appellant has deposited 7.5 % of the duty confirmed against it by the authority below. 19. The two provisos in Section 35F relax the rigour of this command only in two respects, the first being that the amount to be deposited would not exceed ₹ 10 crores, and the second being that the requirement of pre-deposit would not apply to stay applications or appeals pending before any authority before the commencement of the Finance (No.2) Act, 2014, i.e. before 6th August, 2014. 20. Allowing the CESTAT to entertain an appeal, preferred by an assessee after 6th August, 2014, would, therefore, amount to allowing the CESTAT to act in violation, not only of the main body of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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