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2015 (10) TMI 2451 - CESTAT AHMEDABAD

2015 (10) TMI 2451 - CESTAT AHMEDABAD - TMI - Waiver of pre deposit - Section 35F - Mandatory pre deposit - Held that:- Appeal and stay application were not pending before the Tribunal prior to the amendment of Section 35F of the Act. It is also noted that in the present case, the impugned order was passed after amendment. The only stand of the Learned Counsel of the applicant is that the Show Cause Notice was issued prior to amendment and therefore, they are not covered by the amended section t .....

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he applicant to furnish proof of mandatory as required under Section 35F as amended by the Act, within two weeks from today to the Registry of this Tribunal. Otherwise, the Registry is directed to return the appeal as the Tribunal has no power to entertain the appeal. - in view of the amendment of the Section 35F of the Act, the Stay application is not maintainable. - Decided against assessee. - Application No.: E/Stay/10640/2015 & E/Others/10641/2015, Appeal No. : E/11119/2015 - ORDER No. M/112 .....

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Stay application under Section 35F of the said Act, as it stood prior to amendment. 2. After hearing both the sides and on perusal of the records, we find that the applicant filed the appeal on 6.7.2015 against the impugned Order No. SIL-EXCUS-000-027-14-15 dtd 25.3.2015 passed by the Commissioner of Central Excise and Service Tax, Silvasa Commissionerate. The main contention of the Learned Advocate is that the Show Cause Notice was issued on 17th December 2013, prior to amendment of Section 35F .....

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; Co vs Union of India and Others 2015.TI)L.511.HC.AP.CX. 3. On the other hand, the learned Authorised Representative on behalf of the Revenue submits that Hon ble Allahabad High Court in the case of M/s Ganesh Yadav vs. Union of India and others 2015.TIOL.1490.HC.All.ST on identical issue dismissed the petition filed by the petitioner. He particularly drew the attention of the Bench Para 18, 19 and 20 of the order. 4. We find that Section 35F of the Central Excise Act was amended on 6.8.2014. T .....

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n 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); Against the decision or order referred to in clause (a) of sub-section (1) of Section 35B, unless the appellant has deposited seven and half per cent of the duty, in case where duty or duty and penalty are dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against; Against the decision or order .....

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re any appellate authority prior to the commencement of the Finance (No.2) Act. 2014. 5. On plain reading of the above provisions, it is clear that no appeal shall be entertained by the Tribunal unless the appellant has deposited the amount as specified therein, in pursuance of the decision or order appeal against. It is seen that second proviso under section 35F makes it clear that the provisions of this section shall not apply to the Stay applications and appeals pending before any appellate T .....

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hat the Show Cause Notice was issued prior to amendment and therefore, they are not covered by the amended section the 35F of the Act. 6. We are unable to accept the contention of the Learned Advocate of the applicant. We find that there is a clear direction of the legislature that the Tribunal shall not entertain any appeal unless the appellant has deposited the amount as specified therein in respect of appeal filed after amendment. In our considered view, the applicant is required to furnish t .....

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s accrued in favour of the applicant, prior to by issue of Adjudication Order. So, the case law would not be applicable in the present case. 8. The case of M/s Muthoot Finance Ltd (supra), is in context of the demand of Service Tax and penalty confirmed against the petitioner before 6.8.2014. In this case, the demand of Service Tax and penalty was confirmed after 6.8.2014 by the impugned order. In the case of M/s K Rama Mohanarao & Co (supra) the petitioner challenged the constitutional vali .....

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nt portion of the said decision is reproduced below: 18. Parliament while substituting the provisions of Section 35F of the Central Excise Act, 1944 by Finance Act (No.2) of 2014, has laid down that the Tribunal or the Commissioner (Appeals) shall not entertain any appeal unless the appellant has deposited the duty or, as the case may be, a penalty to the stipulated extent. These words in Section 35F of the Act would indicate that on and after the enforcement of the provision of Section 35F of t .....

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lications and appeals which were pending before any appellate authority prior to the commencement of Finance (No.2) Act 2014. The second provision is a clear indicator that Parliament has exempted the requirement of complying with the pre-deposit as mandated by Section 35F(1) of the Act as amended only in the case of those stay applications and appeals which were pending before any appellate authority prior to the commencement of Finance (No.2) Act 2014. Consequently, both by virtue of the openi .....

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