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2022 (5) TMI 9 - HC - Central ExciseMaintainability of appeal before the Tribunal - non-fulfillment of the condition of pre-deposit of 7.5% of the duty subject to the amount specified in the first proviso to Section 35(F) of the Central Excise Act, 1944 - Valuation of goods - method of valuation - iron ore pellets - applicability of Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 or Rule 4 of said Rules - related party transaction or not - Demand of differential duty alongwith interest and penalty - HELD THAT:- As is revealed from the record, it is admitted fact that the petitioner had not deposited as statutorily required to do under Section 35F of the Central Excise Act. However, enclosing copy of e-receipt to the Memo dated 19.04.2022 the counsel for the petitioner submitted that the petitionercompany has made a payment of Rs.10,00,00,000/- (rupees ten crores) which is the maximum amount specified under the first proviso to Section 35F of the Central Excise Act for compliance of mandatory requirement for entertainment of appeal. The position as of now stands can be summarized as: prior to 06.08.2014, the pre-deposit of percentage of duty confirmed or penalty imposed for filing appeal before the Commissioner (Appeals) or the CESTAT was not mandatory and decision in this regard was to be taken by the Commissioner (Appeals) and/or the CESTAT on the merit of the case. The Appellate Authority was vested with discretion to decide the amount of pre-deposit required to be made by the appellant after taking into consideration the merits of the case and/or considering financial hardship caused to the assessee. This apart, safeguard of the interest of revenue was also one of the factors. The Appellate Authority was even competent to order for partial predeposit or to waive the pre-deposit altogether. However, with effect from 06.08.2014, such discretion of the Commissioner (Appeals) and/or CESTAT has been dispensed with. If the prescribed pre-deposit is not made by the time of entertainment of the appeal, the appeal is liable for rejection. It is an undisputed position that a right to file an appeal is not an absolute right but a right bestowed by the statute. Thus, such a statutory right of appeal can be made subject to conditions. However, though the right of appeal has been made conditional by Section 35F of the Central Excise Act, 1944 it is unambiguously suggested that a party who desires to challenge the Order-in-Original in appeal shall have to deposit in terms of provisions contained in Section 35F of the Central Excise Act. The requirement to make such deposit is to be fulfilled for the purpose of “entertainment of appeal” and not “filing of the appeal” - Since the Order-in-Original itself is dated 29th November, 2017, i.e., much after Section 35F has been amended with effect from 6th August, 2014, the Petitioner cannot avail a benefit of second proviso to Section 35F Act (post amendment). By the date of entertainment of appeal no evidence was placed on record by the petitioner-appellant to show that it had complied with the condition hedged for “entertainment of appeal”. However, in view of the undisputed contents of the Memo dated 19.04.2022 and the application accompanied by the affidavit and no objection being raised by the counsel for the Revenue to take up the main writ petition for hearing and setting aside the order dated 19th March, 2018 passed by the CESTAT - Considering the fact that the Petitioner has deposited Rs.10,00,00,000/- as condition for entertainment of appeal as required under Section 35F of the Central Excise Act, 1944 in consonance with the amended provision, this Court directs for no coercive measure for recovery of the rest of the demand raised pursuant to Orderin- Original dated 29th November, 2011 by the Commissioner of Central Tax, GST & CX Commissionerate, Rourkela be taken till disposal of the appeal by the CESTAT. Petition disposed off.
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