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M/s. Sridhar Metal Versus Commissioner of Central Excise, Customs & Service Tax, Aurangabad

2015 (4) TMI 489 - CESTAT MUMBAI

Waiver of pre deposit - appeal were filed before the amendment - Non compliance with pre deposit condition - Amendment in Section 35F - Held that:- In view of the section 35F, the statute provides that appeal shall be entertained only when the 7.5% or 10% as the case may be of duty is deposited. - as regard appeal procedure in this appellate Tribunal, the moment appeal is filed, it attains the stage of entertaining the appeal by the Tribunal. Unlike procedure in the Hon'ble High Court and Hon'bl .....

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ay be is required to be deposited 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 o .....

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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-deposit of 7.5% of the duty amount in terms of Section 35F of Central Excise Act, 1944. 2. Shri A.B. Nawal Ld. Cost Accountant appearing on behalf of the appellant submits that as per Section 35F deposit of 7.5% of duty amount is required to be made in order to entertain the appeal by this Tribuna .....

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he Tribunal entertains the appeal that means before hearing of the appeal on merit. In support of his contention he refers to Section 35B of Central Excise Act, 1944, according to 35 B(i) D(i) the discretion of Appellate Tribunal to refuse or to admit an appeal is provided in certain circumstances but the appellant is not covered under such circumstances, therefore this Tribunal cannot refuse to admit the appeal only for want of 7.5% deposit as provided under Section 35F. He also refers sub-sect .....

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; according to which entertain' means to give judicial consideration' and it also means to admit a thing for consideration'. In this support he relies upon Hon'ble High Court judgment in case of [1968 AIR 488 SCR (1) 505] Lakshmi Rattan Engineering Works Ltd. vs. Asstt. Commr. Sales Tax, Kanpur & Anr. wherein in context with Section 9 of U.P. Sales Tax Act (U.P. 15 of 1948) the meaning of word entertain' is given as entertain means point of time when the appeal is being c .....

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harma 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. w .....

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an not refuse to accept and admit the appeal only for non deposit of 7.5% of the duty amount. Whenever the appeal is taken up for hearing and consideration on merit, till that time the appellant is at liberty to deposit the amount of 7.5% and before that appellant cannot be insisted upon to deposit the said amount of pre-deposit. 3. On the other hand, Shri V.K. Agarwal, Ld. Addl. Commissioner (A.R.) submits that in terms of Section 35F, the deposit of 7.5% is mandatory and the same is required t .....

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y requirement for filing the appeal before this tribunal. He also brought to the notice of this Bench that as per Clause 98 of Finance Bill 2014 it seeks to substitute to Section 35 F of the Central Excise Act and objective of the said amendment is to provide for deposit of certain percentage of duty demanded or penalty imposed or both, before filing the appeal, therefore 7.5% of the duty amount has to be deposited before filing of the appeal. Ld. A.R. refers to CBEC Circular 984/A/2014-CX dated .....

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Deposit of certain percentage of duty demanded or penalty imposed before filing appeal. - The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal- (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 .....

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n 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 of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commenceme .....

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submission of Ld. Counsel that the appeal cannot be dismissed for want of said deposit due to the reason that deposit is required only for entertaining the appeal by the Tribunal, we are of the view that as regard appeal procedure in this appellate Tribunal, the moment appeal is filed, it attains the stage of entertaining the appeal by the Tribunal. Unlike procedure in the Hon'ble High Court and Hon'ble Supreme Court, there is no procedure in this Appellate Tribunal for motion hearing o .....

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iling of the appeal itself. We have perused old Section 35F of the Central Excise Act, 1944 and 129E of the Customs Act, 1962, according to which the appellant was allowed to file an appeal only after deposit entire adjudged amount and alternatively, if he so desires that the deposit of adjudged dues would cause undue hardship, it was provided discretion to the Tribunal to waive the pre-deposit of such amount on an application by the appellant. After the amendment, intention of the legislature i .....

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o 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. W .....

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) or the Tribunal of the first stage and another 10% of the duty demanded or penalty imposed or both for filing second stage appeal before the Tribunal. The amount of pre-deposit payable will be subject to ceiling of ₹ 10 crores. From the above TRU's letter, it becomes clear that the intention of the legislature is that the deposit of 7.5% of 10% is required for filing appeal. Therefore objective and purpose of amended provision 35F is to make deposit of 7.5% or 10% in order to filing .....

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ive construction should be applied in a case of this nature to find out the object of the Act. When a statute cannot be considered in such a manner which would defeat its object, the legislature is presumed to be aware of the consequences flowing therefrom. The statute should be considered in such manner so as to hold that it serves to seek a reasonable result. The statute would not be considered in such a manner so as to encourage defaulters and discourage those who abide by the law. (b) [2012( .....

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be identified and then to find the appropriate heading, sub-heading under which the identified goods/products would be classified. To find the appropriate classification description employed in the tariff nomenclature should be appreciated having regard to the terms of the headings read with the relevant provisions or statutory rules or interpretation 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 .....

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efore, 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 al .....

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, where a literal construction would reduce the provision to absurdity or prevent manifest intention of the legislature from being carried out." (c) [1987 AIR 1023] Reserve Bank of India 1.2 Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual .....

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provided by the context. With these glasses the court must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. In the above judgments, it is settled that interpretation of statute has to be made keeping in view the purpose and objective for which such statute was enacted. In the present case, from the .....

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