2010 (2) TMI 281 - AT - Service Tax

Failure to pre deposit failure to comply with the conditions of stay order - whether the appeal is liable to be dismissed for noncompliance of the requirement of Section 35F or for non-compliance of the order passed under the proviso to the said Section and in the like manner under Section 129E of the Customs Act 1962 and/or Section 86(7) of the Finance Act 1994 is no more res integra as the Apex Court rulings in that regard are very clear. Navin Chandra Chhotelal v. Central Board of Excise & Customs NAVIN CHANDRA CHHOTELAL Versus CENTRAL BOARD OF EXCISE & CUSTOMS and Vijay Prakash D. Mehta v. Collector of Customs 2008 -TMI - 42376 - SUPREME COURT OF INDIA Held that - There could be various reasons for non-compliance of the requirement. In case such reasons are found to be genuine and justifiable the same may be sufficient to condone the failure or delay in compliance. Obviously it may not justify immediate dismissal of the appeal on the ground of non-compliance of the order. But it cannot be said that it is necessary to wait till the appeal gets ripe for final hearing in regular course. - The Tribunal is bound by the law laid down by the Apex Court. Any decision of any other authority taking a view contrary to the law laid down by the Apex Court cannot be construed to have overruled the law laid down by the Apex Court nor any such decision which is contrary to the law laid down by the Apex Court would be binding upon the Tribunal. - All the appeals be fixed for hearing on the point as to whether there is any genuine and justifiable ground for non of the said requirement within the time specified under respective stay orders.

Summary

Issues Involved:
1. Compliance with Section 35F of the Central Excise Act, 1944.
2. Consequences of non-compliance with the order passed under the proviso to Section 35F.
3. Interpretation of Section 35C(2A) of the Central Excise Act.
4. Applicability of precedents and judicial interpretations from higher courts.

Detailed Analysis:

Compliance with Section 35F of the Central Excise Act, 1944
The appellants failed to comply with the order passed by the Tribunal under the proviso to Section 35F, which mandates the deposit of the duty. This failure led to a show cause notice as to why the appeals should not be dismissed. The appellants contended that Section 35F is controlled by Section 35C(2A), and thus, the appeal should not be dismissed merely for non-compliance with Section 35F.

Consequences of Non-Compliance with the Order Passed Under the Proviso to Section 35F
The Tribunal examined various precedents to determine the consequences of non-compliance with Section 35F. The Apex Court in Navin Chandra Chhotelal v. Central Board of Excise & Customs held that the appellate authority is fully competent to reject the appeal for non-compliance with the requirement of deposit under Section 129 of the Customs Act. Similarly, in Vijay Prakash D. Mehta v. Collector of Customs, the Supreme Court emphasized that the right to appeal is a statutory right and can be circumscribed by conditions such as the deposit requirement under Section 129E of the Customs Act. The High Courts of Delhi, Karnataka, and Kerala have also upheld the principle that failure to deposit the required amount renders the appeal incompetent.

Interpretation of Section 35C(2A) of the Central Excise Act
The appellants argued that Section 35F should not be read independently of Section 35C(2A), which prescribes a time limit for the disposal of appeals. The Tribunal noted that Section 35C(2A) is procedural and directory in nature, as indicated by the phrase "where it is possible to do so." The Gujarat High Court in Poly Fill Sacks v. Union of India and the Supreme Court in Sambhaji v. Gangabai have held that procedural laws are meant to advance the cause of justice and should not obstruct it. The Tribunal concluded that the time limit for disposal of appeals is not mandatory and does not override the requirement of deposit under Section 35F.

Applicability of Precedents and Judicial Interpretations from Higher Courts
The Tribunal is bound by the law laid down by the Supreme Court. Any decision of a High Court that contradicts the Supreme Court's rulings is not binding on the Tribunal. The Calcutta High Court's decision in Promising Exports Limited v. Union of India was found difficult to reconcile with the Supreme Court's decisions. The Tribunal emphasized that the statutory provisions do not expressly provide for the rejection of an appeal for non-compliance with the deposit requirement, but the power to do so is inherent and must be exercised unless justified otherwise.

Conclusion
The Tribunal concluded that it is empowered to dismiss an appeal for failure to comply with the deposit requirements under Section 35F of the Central Excise Act, Section 129E of the Customs Act, and Section 86(7) of the Finance Act, 1994. This dismissal can occur at any point during the pendency of the appeal and does not need to wait until the appeal is ripe for final hearing. However, before dismissing the appeal, the Tribunal must provide an opportunity for the appellant to be heard on whether there are genuine and justifiable grounds for non-compliance. The appeals were fixed for a hearing to determine if there were any such grounds for non-compliance.

The Tribunal expressed appreciation for the assistance provided by the amicus curiae and disposed of the point of consideration accordingly.