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Keppel Purvanakara Development Pvt. Ltd. Versus Commissioner of Service Tax Bangalore

2015 (11) TMI 1425 - CESTAT BANGALORE

Waiver of pre deposit - Mandatory pre deposit - Section 35F - Held that:- Supreme Court in the case of Hoosein Kasam Dada (India) Ltd. Vs. The State of Madhya Pradesh and Ors. [1953 (2) TMI 35 - SUPREME COURT OF INDIA] was considering the provisions of Central Provinces and Berar Sales Tax Act, 1947 - provisions of section 35F would not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of Finance Act 2014 was not made while amending the r .....

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authority which means that any stay applications/ appeals filed on or after 06.08.2014, the amended section would be applicable. - contention of both the appellants that they are not liable to make mandatory penalty of 7.5%/10% as directed in the provisions of Section 35F cannot be accepted. However in the interest of justice, both the appellants are required to be given time to make the payment - Decided partly in favour of assessee. - ST/Stay/23083/2014 in ST/22676/2014-DB & ST/22830/2014-DB .....

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hat there is a defect in the appeal since 7.5% of the duty demanded has not been deposited as required under Section 35F of Central Excise 1944. The appellants have replied in response to the defect memo stating that the amendment would not be applicable to them since the lis had arisen much earlier to the date on which the amendment was carried out to Section 35F of Central Excise Act 1944. In the second case, the appellants have not deposited the amount but filed a stay application and it wa .....

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itted that the Honble Supreme Court took the view in this case that the amended Section cannot be applied to the cases where the lis had arisen prior to the date of amendment. 4. We have considered the submissions. 5. Hon ble Supreme Court was considering the provisions of Central Provinces and Berar Sales Tax Act, 1947. The relevant provisions before amendment and after the amendment are reproduced for better appreciation. 2. Section 22(1) of the Act was originally expressed in the following .....

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an order under this Act may, in the prescribed manner, appeal to the prescribed authority against the order: Provided that no appeal against an order of assessment, with or without penalty shall be admitted by the said authority unless such appeal is accompanied by a satisfactory proof of the payment of the tax, with penalty, if any, in respect of which the appeal has been preferred. 6. On the other hand provisions of Section 35F as amended are reproduced below: The proviso to Section 35F of Ce .....

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s in dispute, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the 5[Principal Commissioner of Central Excise or Commissioner of Central Excise]; ii. Against the decision or order referred to in clause (a) of sub-section (1) of section 35B, 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 the decision or orde .....

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t apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No. 2) Act, 2014. Explanation-For the purposes of this section duty demanded shall include,- i. Amount determined under section 11D; ii. Amount of erroneous Cenvat credit taken; iii. Amount payable under rule 6 of the Cenvat Credit Rules, 2001 or the Cenvat Credit Rules, 2002 or the Cenvat Credit Rules, 2004.] It can be seen from the reproduced provisions hereinabove that .....

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