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2015 (7) TMI 313 - CESTAT NEW DELHI

2015 (7) TMI 313 - CESTAT NEW DELHI - TMI - Waiver of pre deposit - Mandatory pre deposit of 7.5% - whether pre-deposit of 7.5% of the impugned service tax liability in terms of Section 35F (as amended w.e.f. 6.8.2014) of the Central Excise Act 1944 read with Section 83 of the Finance Act, 1994 is required to be made while filings appeal against order-in-original dated 29.8.2014 when the Show Cause notice in respect thereof was issued before 6.8.2014 - Held that:- petitioner in whose case also t .....

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MI 634 - KERALA HIGH COURT] did not lay down any ratio with regard to the general applicability of the provisions of Section 35F as they stood prior to 6.8.2014 in respect of appeals filed on or after the said date and the said orders in respect of respective petitioners were issued in exercise of its writ jurisdiction in the given circumstances after taking note of a prima facie view of the Andhra Pradesh High Court in that regard.

Second proviso to amended Section 35F does not leav .....

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s created it. - appellant is required to make the mandatory pre-deposit in terms of Section 35F of Central Excise Act, 1944 as amended with effect from 6.8.2014 and in the absence of such pre-deposit its appeal shall not be entertained - Decided against assessee. - Diary No. 500070/2015 - Dated:- 8-6-2015 - G Raghuram, President And R K Singh, Member (T),JJ. For the Appellant : Shri Puneet Agarwal, Adv For the Respondent : Amresh Jain, DR ORDER The only issue involved in the matter is whether pr .....

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634 (Ker.-HC) and in the case of M/s A.M. Motors Vs. Union of India and Commissioner of Central Excise, Kozhikode - 2015 (6) TMI-162 -Kerala-High Court, mandatory pre-deposit is not required because lis in question commenced prior to the introduction of the amended Section 35F ibid and therefore the appeal should be dealt with in terms of the provisions of Section 35F as existed prior to 6.8.2014 and that the same view has been held by Punjab & Haryana High Court in the case of M/s Super Th .....

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ajasthan High Court, wherein reference is made to Civil Misc. Writ Petition No. 12232/2014 in which the Rajasthan High Court expressed an opinion that the effect of the amendment to Section 35F cannot be restricted only for those appeals which are filed after 6.8.2014 and that such a restriction will be violative of Article 14 of the Constitution of India. In effect the Hon'ble Rajasthan High Court held that the provisions of Section 35F will apply even to the appeal filed prior to 6.8.2014 .....

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upra), the High Court had taken note of the judgement of the Andhra Pradesh High Court wherein the Hon'ble Andhra Pradesh High Court had taken a prima facie view that "inasmuch as the lis in question had commenced prior to introduction of the amendment to the Finance Act, 1994 with effect from August 2014, the petitioner's right of appeal as per the erstwhile provisions of law would not be effected by the provisions introduced by amendment of 2014". The Hon'ble Kerala High .....

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rs to file appeal before CESTAT and ordered that the CESTAT shall deal with those appeals in terms of the provisions of Section 35F as they stood prior to 6.8.2014. Thus, Hon'ble Kerala High Court did not lay down any ratio with regard to the general applicability of the provisions of Section 35F as they stood prior to 6.8.2014 in respect of appeals filed on or after the said date and the said orders in respect of respective petitioners were issued in exercise of its writ jurisdiction in the .....

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the amount of 7.5% of the duty and/or penalty, as the case may be, not being deposited. In view of the orders passed by a learned Single Judge of the Kerala High Court in the case titled M/s Muthoot Finance Ltd. Vs. Union of India and Another - WP(C).No. 6173 of 2015 (V), the respondents shall not treat the appeal as being not maintainable on account of the failure to deposit the amounts as per the amended Section 35F of the Central Excise Act, 1944 which came into effect on 6.8.2014". Thus .....

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dment cannot be restricted only for those appeals which are filed after 6.8.2014. Such a restriction will be violative of Article 14 of the Constitution of India. The amended provisions, thus will apply to even those orders, which have been passed before the amendment was made effective". While issuing notice of the writ and stay petition, the High Court directed that in the meantime the appeal shall not be dismissed by the Tribunal provided the petitioner complies with the condition of pre .....

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manded of penalty imposed before filing appeal. The Tribunal of 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 office of Central Excise lower in rank than the Commissioner of Central Excise; (ii) ag .....

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uty 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 ₹ 10 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 commencement of the Finance (No. 2) Act, 2014 - i.e. 6.8.2014. Explanation - for the purposes of this s .....

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