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2023 (8) TMI 1371 - AT - Central ExciseMaintainability of appeal - failure to make pre-deposit as required Section 35F of Central Excise Act, 1944 readwith Section 83 of the Finance Act, 1994 - HELD THAT:- This issue is no more res-integra and has been settled by the Larger Bench of the Tribunal as well as by the Hon’ble High Court of Bombay and Hon’ble High Court of Madras as well as Hon’ble Punjab and Haryana High Court. The jurisdictional High Court in the case of M/S G.D. GOENKA WORLD INSTITUTE, SANJAY AGGARWAL, M/S IL& FS RAIL LIMITED, M/S AUTO DYNAMIC CORPORATION, M/S OCEANIC CONSULTANTS PRIVATE LIMITED, M/S G.D. GOENKA WORLD INSTITUTE (UNIT OF GDG EDUCATION TRUST) , TARUN MONGA AND M/S SWIFT FUNDAMENTAL RESEARCH AND EDUCATION SOCIETY VERSUS UNION OF INDIA AND OTHERS AND COMMISSIONER OF CENTRAL EXCISE COMMISSIONERATE, LUDHIANA AND ANOTHER [2018 (11) TMI 522 - PUNJAB AND HARYANA HIGH COURT] has held that there would be no escape from pre-deposit as the Tribunal lacks the power to entertain the appeal without it. If we have to lend any other interpretation, it would defeat the legislative intent which is so clearly visible from the provisions of Section 35F of the Act and in fact, there would have been no necessity of amendment and Section 129E in its unamended form need not have been tinkered with. The division bench of the Hon’ble Madras High Court in the case of M/S DREAM CASTLE, REP. BY ITS PROPRIETOR SRI S. VENKATARAMANAN VERSUS UNION OF INDIA, MINISTRY OF FINANCE, REP. BY ITS SECRETARY, DEPARTMENT OF REVENUE, THE COMMISSIONER OF CENTRAL EXCISE, CHENNAI - III COMMISSIONERATE, CHENNAI, CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, SOUTH ZONAL BENCH-CHENNAI M/S. FIFTH AVENUE SOURCING (P) LIMITED [2016 (5) TMI 672 - MADRAS HIGH COURT] has held that Therefore, it is well settled that the right of appeal is a creature of statute and the legislature is well within its competence to impose conditions for the exercise of such a right subject only to the restriction that the conditions so imposed are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory. Thus, the appellant has to comply with the mandatory pre-deposit and accordingly, it is directed that the appellant to comply with Section 35F within four weeks from today failing which his appeal will be dismissed for non-compliance of mandatory pre-deposit under Section 35F of the Central Excise Act, 1944.
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