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2015 (4) TMI 489

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..... ted by the appellant and to be complied at the time of filing of the appeal itself. - After the amendment, intention of the legislature is that instead of 100% of the adjudged dues the appellant is required to pay only 7.5% or 10% as the case may be of the duty or penalty. Therefore it cannot be interpreted that as per the amended Section 35F now the appellant can file the appeal without any deposit - as per Section 35F of Central Excise Act, 1944 and Section 129E of Customs Act, 1962, the appellant is required to ‘deposit 7.5% of duty amount before filing of appeal and to furnish the proof of such payment alongwith appeal filed in this Tribunal. Therefore, we direct the appellant to deposit required amount of 7.5% of the duty including amount already deposited - Decided against assessee. - APPEAL NO. E/88586/14, E/88589/14-MUM - Misc. Order No. M/1618/2015-WZB/EB, - Dated:- 5-3-2015 - P. K. Jain, Member (T) Ramesh Nair, Member (J),JJ. For the Appellant : Shri A.B. Nawal, Adv. For the Respondent : Shri V.K. Agarwal, Addl. Commissioner (A.R.) ORDER Per: Ramesh Nair These appeals are listed for maintainability as appellants have not deposited required pre-de .....

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..... 3 All 320] Haji Rahim Bux and Sons and Ors. Vs. Firm Samiullah and Sons wherein Hon'ble High Court agreed that the word entertain' provided under Rule 90 of the Code of Civil Procedure means not receive' or accept' but proceed to consider on merit' or adjudicate upon'. He also referred the Hon'ble Allahabad High Court judgment [AIR 1963 ALL 547] Kundan Lal vs. Jagan Nath Sharma wherein the Hon'ble High Court dealing with the word entertain' provided in Rule 90 of the order XXI of C.P.C. held that true intention of the proviso is that compliance of clause B of proviso may be made at any time before the application under Rule 90 of order of XXI C.P.C. comes up for decision by the court on merit. On the similar issue, Ld. Counsel Shri. Nawal relies upon Kerala High Court judgment in case of [AIR 1991 Ker 253] Nanu Vasudevan vs. Kalikarthiayaniamma And Anr. wherein the word entertain' as interpreted, means shall not admit to consideration and held that disability of the court is not in relation to mere receipt of the plaint or about the filing of the suit as such, but about an effective consideration of the question. In view of above judg .....

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..... l- (i) 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 passed by an officer of Central Excise lower in rank than the Principal Commissioner of Central Excise or Commissioner of Central Excise; (ii) against the decision or order referred to in clause (a) of sub-section (1) of section 35B , 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 the decision or order appealed against; (iii) against the decision or order referred to in clause (b) of sub-section (1) of section 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: Provided that the amount required to be deposited under this section shall not exceed rupees ten crores: Provided further that the provisions .....

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..... any deposit. We have also gone through objective as given in explanatory notes on the finance bill, 2014 regarding amendment of 35F which is reproduced below: Clause 98 of the Bill seeks to substitute section 35F of the Central Excise Act to provide for deposit of certain percentage of duty demanded or penalty imposed or both before filing an appeal. It also seeks to provide that the provisions of this section shall not be applicable to stay application and appeals before the Appellate Authorities prior to the enactment of the Bill. From the above it can be observed that the objective of the amendment also clearly indicates that amount of 7.5% or 10% as the case may be, is required to be deposited before filing the appeal. We also perused the Board Circular dated 16/9/2014, which made it clear that the deposit of 7.5% or 10% as the case may be, should be made before the filing of the appeal. Similar view was expressed in Ministry's J.S/TRU letter D.C.F. No. 334/15/2014-TRU dated 10/7/2014 which is reproduced below: 13) Section 35F is being substituted with a new Section to prescribe a mandatory fixed pre-deposit of 7.5% of the duty demanded or penalty imposed or both .....

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..... tion put up thereon. For exigibility to excise duty the entity must be specified in positive terms under a particular tariff entry. In its absence it must be deduced from a proper construction of the tariff entry. There is neither intendment nor equity in a taxing statute. Nothing is implied. Neither can we insert nor can we delete anything but it should be interpreted and construed as per the words the legislature has chosen to employ in the Act or rules. There is no room for assumption or presumptions. The object of the Parliament has to be gathered from the language used in the statute. .. .. *** *** *** Therefore, one has to gather its meaning in the legal setting to discover the object which the Act seeks to serve and the purpose of the amendment brought about.The task of interpretation of the statute is not a mechanical one. It is more than mere reading of mathematical formula. It is an attempt to discover the intention of the legislature from the language used by it, keeping always in mind, that the language is at best an imperfect instrument for the expression of actual human thoughts. It is also idle to expect that the draftsman drafted it with divine prescience a .....

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