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2015 (4) TMI 489 - CESTAT MUMBAI

2015 (4) TMI 489 - CESTAT MUMBAI - 2015 (328) E.L.T. 528 (Tri. - 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 ap .....

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tion on merit. Therefore the mandatory deposit of 7.5% or 10% as the case may 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 .....

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5 - 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-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 amo .....

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y should stand deposited. It is not mandatory to make this deposit before the 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 .....

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ided under Section 35F he refers to the dictionary meaning of entertain' 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 entertai .....

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llahabad 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 c .....

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less appellant has deposited 7.5% of duty ......."means the Tribunal can 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 .....

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ubmission that in view of the said circular the payment of 7.5% is mandatory 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 .....

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of 7.5% is made under Section 35F which is reproduced below:- [SECTION 35F. 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 dec .....

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he 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 of this section shall not apply to the stay applications .....

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when the 7.5% or 10% as the case may be of duty is deposited. As regard the 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 C .....

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quired to be deposited by the appellant and to be complied at the time of filing 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 applic .....

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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% .....

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ded or penalty imposed or both for filing appeal with Commissioner (Appeals) 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 .....

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chstone of the purpose and object it sought to achieve. Principle of purposive 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 .....

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and under what entry, the identified entity attracts duty. The goods are to 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 spec .....

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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 .....

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with the language used therein unless there are compelling reasons, such as, 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 interpr .....

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and appear different than when the statute is looked at without the glasses 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 .....

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