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2023 (7) TMI 544 - CESTAT MUMBAIValidity of adjustment of pre-deposit with Cenvat Credit - Amount adjusted through debit of DRC-03 account maintained in the present GST regime - non-compliance of Section 83 of the Finance Act, 1994 read with Section 35F of the Central Excise Act, 1944 - HELD THAT:- The basic main objective of pre-deposit being prevention of filing of frivolous appeals by putting financial burden on the Appellant and the same being deposited in the Government account, we find no reason to dispute it on the ground that the same is taken out from the cash balance or credit balance (which was accrued through payment of cash only) and it is questioned so seriously. In the instant case what 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friction is brought into service by stating that to continue such proceedings under the Amended Act (Finance Act) or Repealed Act (Central Excise Act), it would be taken as if the CGST Act had not come into force and such amendment or repeal had not taken place.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 mentioned that a beneficial Circular has to be applied retrospectively while oppresive circular has to be applied prospectively. This Circular/Instruction being issued after filing of the appeals by these Appellants, enforcement of the same can only have prospective effect. Pre-deposit made by the Appellants from electronic credit ledgers are in compliance to Section 35F of the Central Excise Act and the registration of appeals made by the Registry is valid. The appeals are admitted for hearing and early hearing applications be listed on 30.08.2023 for a decision on out of turn hearing.
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