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TMI Blog2023 (7) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... at is observed is that in two appeals pre-deposits were adjusted against payment made during investigation and in two other appeals it is made from the credit ledger, to which Appellants surplus CENVAT Credit were transited into. Now going by the close reading of the Section 174 sub-Section 1(f) repeal of Central Excise Act or amendment of Finance Act, 1994 would not affect any proceeding relating to an appeal instituted after the commencement of GST Act and a deeming friction is brought into service by stating that to continue such proceedings under the Amended Act (Finance Act) or Repealed Act (Central Excise Act), it would be taken as if the CGST Act had not come into force and such amendment or repeal had not taken place. This being the dictate of the Statute, CENVAT Credit that was available with Appellant on 01.07.2017 would be treated to have been in existence during filing of the appeal as if no transition to TRAN-1 had taken place. Reliance placed in the judicial precedent set by the Hon ble Supreme Court in the case of Commissioner of Central Excise, Bangalore Vs. M/s. Mysore Electricals Industries Ltd. [ 2006 (11) TMI 202 - SUPREME COURT ] wherein it has been clearly men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. ST/87095/2022 and ST/87687/2022 ITC was reversed during the course of investigation towards discharge of duty liability. 3. Learned Counsel for the Appellants pleaded that after appeals have been admitted and registered with final appeal number given by the Registry, such an objection should not be entertained by the Tribunal. To answer his objection, we consider it proper to reproduce Rule 11 of the CESTAT (Procedure) Rule, 1982 before going to deal with the arguments led by both the sides concerning acceptance of the mode of pre-deposit made through DRC-03 account and to find out if is in compliance to Section 35F of the Central Excise Act. It reads: Rule 11 of CESTAT (Procedure) Rules, 1982 - "Rejection or amendment of the memorandum of appeal. 1) The tribunal may, in its discretion, on sufficient cause being shown, accept a memorandum of appeal which is not accompanied by the documents referred to in rule 9 or is in any other way defective, and in such cases may require the appellant to file such documents or, as the case may be, make the necessary amendment within such time as it may allow. (Underlined to emphasise) 2) The tribunal may reject the memorandum o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to record here the objection raised by the Authorised Representative Mr. Nitin Ranjan and to deal with its counter objection since maintainability is questioned by the opponent i.e. the Respondent-Department. He brought to the knowledge of this Bench that in appeal Nos. ST/86243/2021 & ST/86261/2021 pre-deposit of Rs.10 crores for each appeal was made through DRC 03 on 02.07.2021 by utilising credit ledger account (ITC ledger) maintained in the present GST regime. In appeal No. ST/87095 & 87687/2022 pre-deposit was not made at the time of filing of appeal since the amount had been paid by using credit ledger on 26.09.2020 which was much before the issue of show-cause notice on dated 30.12.2020. In placing reliance on the judgment of Hon'ble High Court of Orissa passed in the case of M/s. Jyoti Construction Vs. Dy. Commissioner of CT & GST, Jaipur reported in 2021-TIOL-2007- HC-ORISSA-GST that was followed by this Tribunal in its Bench at Allahabad in the case of M/s. Jhonson Matthey Chemical India Pvt. Ltd. Vs. Assistant Commissioner of CGST & CX, Kanpur (Defect Diary No. 701942022), he submitted that mandatory deposit under Section 35F of the Central Excise Act cannot be made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directing him to hear the appeal on merit, for which he pleads for non-acceptance of the objection raised by the Respondent- Department. Additionally he placed reliance on various judgments and prays for acceptance of the ratio of the judgment in Suchitra Components Ltd. Vs. Commissioner of Central Excise, Guntur reported in 2007 (208) ELT 321 (SC) to say that the Circular in question being issued after filing of his appeals would have no effect on the appeals since it was not issued with retrospective effect. 6. We have heard from both the sides at length and also gone through the written notes filed by both the sides with relied upon judgements. At the outset we would like to mention here that the contesting parties have not argued about the genesis or the basis on which mandatory pre-deposit was introduced and if the same is a component of disputed tax amount since the Form prescribed for filing of pre-deposit is same as the Form used for payment of tax dues. However, going by the judgment of the Hon'ble Orissa High Court in the case of M/s. Jyoti Construction, cited supra that pre-deposit is not "output tax" as defined under Section 2(82) of the Odisha GST Act and Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en place. It is needless to mention here that Appellants had huge CENVAT Credit available with them and since Section 35F is silent about the mode of payment though long practice and judicial decisions, permitted payment made at the time of investigation, payment made upon own assessment of tax liability and debit from the CENVAT Credit account as proper mode of pre-deposits when Central Excise Act and Finance Act were in force and, therefore, they are deemed to have been inforce even at the time of filing of appeal, as if no transition of credits had occurred. 8.1 Apart from the statutory provisions, we also find that the entire dispute concerning acceptance or non-acceptance of pre-deposit from input tax credit account is based on the erstwhile (deleted) provision available under Rule 41 sub-Rule 2 of the CGST Act 2017, bare text of which is reproduced below:- "Section 41 Claim of input tax credit and provisional acceptance thereof (1) Every registered person shall, subject to such conditions and restrictions as may be prescribed, be entitled to take the credit of eligible input tax, as self-assessed, in his return and such amount shall be credited on a provisional basis to ..... 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