9911796707
TMI Blog2023 (4) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise Act, 1944 challenging an order passed by the Customs Excise and Service Tax Appellate Tribunal, Allahabad in Defect Diary No. 705102020, whereby the appeal preferred by the appellant is treated to be defective for non-deposit of mandatory 7.5 % pre-deposit and consequently rejected vide order dated 28.04.2022. The appellant contends that the tribunal is not justified in enforcing Section 35F of the Act while deciding the appeal, which on face of it is illegal and ultra virus, as it infringes the inherent right of appellant to file appeal and to be heard on merits. Various submissions are made on facts in order to submit that the appellant lacks requisite resources to deposit the amount and as the appeal otherwise, raises tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of this Court in Writ Tax No. 750 of 2017 whereby the Court dispensed with the condition of pre-deposit of 7.5 % for entertainment of appeal by the appellate tribunal. Shri Parv Agarwal, for the Department, per contra, submits that the appeal under Section 35F of the Central Excise Act, 1944 is a creature of statue and the conditions stipulated therein would have to be satisfied in order to render the appeal itself maintainable under the Act. Section 35F of the Act, reads as under:- "SECTION 35F. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Cenvat Credit Rules, 2002 or the Cenvat Credit Rules, 2004." Learned counsel for the Department places reliance upon a judgment of a co-ordinate Bench of this Court in Custom Appeal No. 4 of 2022, wherein a similar issue fell for consideration before this Court in respect of a pari materia provision contained in the Customs Act, 1962. Upon consideration of the statutory scheme as also the provision which required mandatory pre-deposit of 7.5 % amount as a pre-condition for entertainment of appeal has been examined to hold that non compliance of the mandatory condition of pre-deposit under Section 129 E (ii) of the Customs Act, 1962 renders the appeal liable for dismissal, due to non fulfillment of mandatory conditions of pre-deposit. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar of Section 129E, the law giver also clothed the appellate body with power as contained in the first proviso. The first proviso provided the Commissioner (Appeals) or as the case may be, Appellate Tribunal the power to dispense with such deposit, subject to conditions as he deemed fit to impose to safeguard the interest of the revenue. 7. The question whether it is undue hardship has been the subject matter of the judgment of this Court in Benara Valves Ltd. and others vs. Commissioner of Central Excise and another, reported in (2006) 13 SCC 347, wherein it, inter alia, held as follow:- "13. For a hardship to be "undue" it must be shown that the particular burden to observe or perform the requirement is out of proportion to the nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l filed by the appellant took place in the year 2013, the appellant [See in this regard, a discussion in Justice G. P. Singh, Principles on Statutory Interpretation (12th Edition) page No.676. must be given the benefit of the power available under the substituted provision, it does not appeal to us. The substitution has effected a repeal and it has re-enacted the provision as it is contained in Section 129E. In fact, the acceptance of the argument would involve a dichotomy in law. On the one hand, what the appellant is called upon to pay is not the full amount as is contemplated in Section 129(E) before the substitution. The order passed by the Commissioner is dated 23.11.2015 which is after the substitution of Section 129E. The appellant f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal as it was preferred without complying with the requirement of pre-deposit specified in Section 35F of the Act of 1944. Section 35F has been extracted above, which contains specific requirement with regard to the condition of pre-deposit of part of the amount for entertainment of appeal. Since the entertainment of appeal itself is dependent upon pre-deposit of amount specified in this act and there is no provision of exemption, the non compliance of such requirement would clearly render the appeal non-maintainable in law. For the appeal to be entertained, the appellant will have to deposit the amount in terms of the statue. The appellate authority would clearly be justified in refusing to entertain the appeal on account of the failure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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