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TMI Blog2023 (4) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... . The contention advanced by the appellant that Section 35F is ultra virus also cannot be examined by this Court in exercise of its jurisdiction created under the statue itself. This Court is not exercising its Constitutional jurisdiction under Article 226 of the Constitution of India and being a creature of statue under the Act, the Court would have to abide by provisions contained therein - there is absolutely no error in the order passed by the appellant authority in refusing to entertain the appeal on account of mandatory non-deposit of the amount. The Division Bench judgment of this Court in the case of Writ Tax No. 750 of 2017 [[ 2017 (12) TMI 775 - ALLAHABAD HIGH COURT] ], also would not be of any help to the appellant because this Court was exercising its power under the writ jurisdiction and not under the statue. Appeal dismissed. - Central Excise Appeal Defective No. - 5 of 2023 - - - Dated:- 17-3-2023 - Hon'ble Ashwani Kumar Mishra And Hon'ble Vinod Diwakar JJ. For the Appellant : Anil Prakash Mathur For the Respondent : Parv Agarwal ORDER In Re: Civil Misc. Delay Condonation Application Delay in filing of the appeal has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the aforesaid appeals. Learned counsel for the appellant has also placed reliance upon a judgement of Division 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 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 Commissioner of Central Excise. (ii) against the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Jha vs. Union of India in Civil Appeal No. 1566 of 2022, wherein the provisions of Customs Act for pre-deposit of part of the amount under the Customs Act fell for consideration before the Supreme Court. Upon examination of the issues the Supreme Court observed as under in para 6 to 12 of the judgment. 6. On a conspectus of the provisions of Section 129E before and after the substitution, it becomes clear that the law giver has intended to bring about a sweeping change from the previous regime and usher in a new era, under which the amount to be deposited was scaled down and pegged at a certain percentage of the amount in dispute. In other words, while under Section 129A, as it stood prior to the substitution, the appellant was to deposit the duty and the interest demanded or the penalty levied, in the present regime, the appeal is maintainable upon the appellant depositing seven and the half percent of the amount. Under the earlier regime, in other words the entire amount which was in dispute had to be deposited. Under the earlier avatar of Section 129E, the law giver also clothed the appellate body with power as contained in the first proviso. The first proviso provided th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 filed the appeal in 2017. What the appellant is called upon to pay is the amount in terms of Section 129E after the substitution, namely, the far lesser amount in terms of the fixed percentage as provided in section 129E. The appellant, however, would wish to have the benefit of the proviso which, in fact, appropriately would apply only to a case where the appellant is maintaining the appeal and he is called upon to pay the full amount under Section 129E under the earlier avtar. 11. We would think that the legislative intention would clearly be to not to allow the appellant to avail the benefit of the discretionary power available under the proviso to the substituted provision under Section 129E. When the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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