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2017 (4) TMI 894 - AT - Central ExciseWaiver of pre-deposit - Section 35F of the CEA, 1944 - appellant claim that right of appeal accrues on the date of initiation of the assessment proceedings. Therefore the law prevailing on that date shall be relevant and not law on the date of its decision or the date of filing of appeal. Therefore, in this case the mandatory deposit of 7.5% is not applicable - Revenue claims that the pre-deposit of 7.5% is the requirement for filing appeal before this Tribunal which became effective from the enactment of the Finance Bill, 2014. Therefore, the initiation of the proceeding is not relevant for the purpose of mandatory pre-deposit of 7.5%. Held that: - From a plain reading of the aforesaid Section 35F, it is clear that the pre-deposit of 7.5% is pre-requisite for filing appeal in this Tribunal and it is not related to proceedings of the appeal. Therefore, deposit of 7.5% is requirement for filing the appeal before this Tribunal. Therefore, the submission of ld. counsel that it is to be taken from the date of initiation of the proceedings is absolutely irrelevant. If the legislators have any intention not to collect 7.5% in cases where the proceedings have been initiated prior to enactment of Finance Bill, 2014, the same would have been incorporated in amended Section 35F explicitly. In the absence of such explicit provision, there is no scope for interpretation that the 7.5% is required only in cases wherein the proceedings have been initiated on or after the amended section 35F in the Finance Bill, 2014. Reliance placed in the case of Nimbus Communications Limited, Versus Commissioner of Service Tax, Service Tax-VI, & Others [2016 (8) TMI 451 - BOMBAY HIGH COURT], where it was held that On and after the enforcement of the provision of Section 35F of the Act, as amended, an appellant has to deposit the duty and penalty as stipulated and unless the appellant were to do so, the Tribunal shall not entertain any appeal. The applicant is required to make a pre-deposit of 7.5% of the adjudged dues which the applicant failed to do so - the appeal is not maintainable for want of pre-deposit in terms of Section 35F. Appeal dismissed being non-maintainable.
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