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WAIVER OF MANDATORY PRE-DEPOSIT FOR FILING APPEAL

Central Excise - By: - Mr. M. GOVINDARAJAN - Dated:- 25-3-2015 Last Replied Date:- 26-3-2015 - Section 35F of the Central Excise Act, 1944 provides that the Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal- under sub-section (1) of section 35, unless the appellant has deposited seven and a half per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute-in pursuance of a decision or an order .....

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on 35B, unless the appellant has deposited ten per cent. of the 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: The amount required to be deposited under this section shall not exceed rupees ten crores: 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. .....

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If the petitioner wants to file appeal before the appellate authority the petitioner has to deposit the mandatory percentage as a condition for preferring an appeal before the appellate authority. The petitioner filed a writ petition before the High Court. The department contended that the petitioner did not avail the alternative remedy available under the provisions of the Act i.e., the petitioner ought to have filed appeal before the Tribunal. Filing writ petition before the High Court is not .....

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Finance Act, 1994. The High Court is of the view that the settled law that the institution of a suit carries with it an implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit and further that the right of appeal that is vested is to be governed by the law prevailing at the date of institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of filing of the appeal. The .....

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he time of filing the appeal, will not be required to make any payment as a pre condition for the hearing of the waiver of the application by the Tribunal. The High Court relegated the petitioner to the alternate remedy available under the Finance Act, 1994 as amended of approaching the Appellate Tribunal by way of an appeal against the impugned order. The High Court made it further clear that the appeal to be filed by the petitioner would be governed by the statutory provisions, as they stood p .....

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