TMI Blog2015 (7) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... y before the Tribunal. Vide the said judgements, Hon'ble Kerala High Court allowed the respective petitioners 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 in [2015 (3) TMI 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 reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment in the case of Muthoot Finance Ltd. Vs. Union of India Ors. - 2015 (3) TMI 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 Threading (India) Pvt. ltd. and Another Vs. Union of India and Others - CWP-7696-2015. 3. The ld. DR, on the other hand, stated that the judgements of Kerala High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Court observed that the said view seems to be consistent with the settled law. Having thus observed and in that view of the matter the Hon'ble Kerala High Court found that petitioner in whose case also the lis commenced in 2013 would not be required to deposit the amount of 7.5% as required pursuant to the 2014 amendment and in that respect, he would have efficacious alternate remedy before the Tribunal. Vide the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise Act, 1944 which came into effect on 6.8.2014 . Thus the said order of the Punjab Haryana High Court was issued taking note of the order in the case of Muthoot Finance (supra) and does not really lay down any ratio. It is settled law that it is the ratio of a judgement that constitutes a precedent. On the other hand, the Rajasthan High Court in the Writ Petition of Paramount Security (supra) considering the effect of the substituted provisions of Section 35F with effect from 6.8.2014 has recorded an opinion that the effect of the amendment 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ahluwalia Construction Group, (supra) CESTAT, while deciding the issue at hand, after taking due note of the judgement of the Hon'ble Supreme Court in the case of Hossein Kasam Dada (India) Ltd. Vs. State of Madhya Pradesh -1953 SCR 987 held that CESTAT cannot entertain any appeal filed on or after 6.8.2014 without the mandatory pre-deposit as per the provisions of Section 35F of Central Excise Act, 1944 as amended after 6.8.2014. 6. In the light of the analysis above, we hold that the 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. - - TaxTMI - TMITax - Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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