TMI Blog2017 (4) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 and Customs Act, if an assessee or importer wishes to exercise his statutory right of second appeal, then the said exercise of right it needs to be considered as an independent right and proceeding subsequent to pre-deposit of the amount to exercise first appeal needs to be considered as having come to closure - the appellant is required to deposit separately 10% of the amount of the duty confirmed/ penalty imposed, for preferring of appeal before the Tribunal against the order of Commissioner (Appeals). - Excise Appeals No.2111 - I.Order No.39/2017 - Dated:- 20-4-2017 - Dr. Satish Chandra, President, Mr. M.V. Ravindran, Member (Judicial) And Mr. V. Padmanabhan, Member (Technical) Shri Amresh Jain, D.R. Shri Govind Dixit, D.R., fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Bar Associations despite notices. Shri Joseph K. Antony, Advocate from Indirect Taxes Bar Association, Chennai filed a written submission which are considered. 4. Learned D.R. Shri Amresh Jain/Shri Govind Dixit appeared on behalf of Revenue and submitted that the plain reading of provisions indicate that the appellant if he wants to prefer a 2 nd appeal has to deposit additional 10% of the amount of duty/penalty as the case may be, over and above the amount of mandatory deposit made for preferring appeal before the first appellate authority. It is the submission that the pre-deposit before first appellate authority and second appellate authority are independent. He would take us through the decision of Ahmedabad Bench in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against: Provided that the amount required to be deposited under this section shall not exceed rupees ten crores. Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No.2) Act, 2014. Explanation. - For the purposes of this section duty demanded shall include, - (i) Amount determined under Section 11D; (ii) Amount of erroneous CENVAT credit taken; (iii) Amount payable under rule 6 of the Cenvat Credit Rules, 2001 or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rores. Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No.2) Act, 2014. 6.1 It can be seen from the above reproduced Sections, the dispute is basically only on the point as to the pre-deposit mandated for preferring second appeal before the Tribunal. It was submitted that CBEC's Circular dated 16.09.2004 indicates the clear intention of legislature. On reading the said Circular, we find in paragraph No.2, more specifically 2.1, the Circular only states that in the event of appeal of appellant against order of Commissioner (Appeals) before the Tribunal, 10% is to be paid on the amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be irrespective of the amounts equivalent to 7.5% deposited by them for preferring an appeal to the first appellate authority. On reading of provisions of pre-deposits under Central Excise Act, 1944 and Customs Act, if an assessee or importer wishes to exercise his statutory right of second appeal, then the said exercise of right it needs to be considered as an independent right and proceeding subsequent to pre-deposit of the amount to exercise first appeal needs to be considered as having come to closure. In that case, an assessee or importer as the case may seeks legal remedies available to them, as regards mandatory pre-deposits made before first appellate authority, it needs to be decided in accordance with law. 6.3 In view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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