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2016 (5) TMI 1059 - CESTAT BANGALORE

2016 (5) TMI 1059 - CESTAT BANGALORE - TMI - Pre- deposit - Non- deposit of mandatory requirement of deposit of 7.5%/10% - Demand in terms of amended provisions of Section 129E of the Customs Act, 1962 - Held that:- the issue of pre-deposit stands finally decided by the Hon’ble Delhi High Court in the case of Anjani Technoplast Ltd. Vs. Commissioner of Customs [2015 (10) TMI 2446 - DELHI HIGH COURT] and Hon’ble Allahabad High Court in the case of Ganesh Yadav Vs. Union of India [2015 (7) TMI 304 .....

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MBER For the Appellants : None For the Respondent : Mr. Uma Banawalkar, A.R. ORDER PER : ASHOK K. ARYA In these three matters, the defect memos were issued by Registry inter alia regarding non-deposit of the mandatory requirement of deposit of 7.5% /10% of the confirmed demand against the assessees in terms of the amended provisions of Section 129 E of the Customs Act, 1962. 2. It is seen that the provisions of Section 129E of the Customs Act, 1962 and Section 35F of the Central Excise Act, 1944 .....

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2014, though the appeals were filed subsequent to 6.8.2014. It is found that all these appeals have been filed after 6.8.2014.3. The Hon ble Kerala High Court s decision by learned Single Judge, was pronounced in the case of Muthoot Finance Ltd. Vs. Union of India reported as 2015 (320) E.L.T. 51 (Ker.) laying down that there was no requirement of mandatory pre-deposit as contained in the amended provisions of Section 35F, in respect of the appeal filed before the Tribunal relating to the procee .....

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held that amended Section 35F / 129E of the Central Excise Act, 1944 and Customs Act, 1962 respectively are retrospective in operation and would cover all the appeals filed before the Tribunal on or after 6.8.2014. The Honble Karnataka High Court in this case has inter alia concluded as follows: (1) It is held that in the instant case, the right to file an appeal, which is a substantive right granted under Sections 35 and 35B of the Act has not been amended and remains intact. That Section 35F .....

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eal under Section 35 or 35B as the case may be is not an absolute right, but a conditional one. (2) In view of a plethora of decisions of the Hon'ble Supreme Court, it is held that in the instant case, the right to file an appeal under Sections 35 and 35B of the Act is in no way affected by the amendment made to Section 35F of the Act requiring pre-deposit to be made at the time of preferring the appeal. Such a condition regarding pre-deposit is made with a view to regulate the exercise of t .....

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ving clause, keeping intact the earlier provision of Section 35F to be made applicable to circumstances noted under the second proviso. That in all other cases not covered under the second proviso, the amended Section 35F is applicable as it has a retrospective operation. Such a legislation by amendment having a retrospective operation is a valid piece of legislation. (5)....... (6) As the amended Section 35F has a retrospective operation and none of the petitioners herein has filed an appeal pr .....

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ench. 5. Further, it is found that the issue also stands decided by the Hon ble Delhi High Court in the case of Anjani Technoplast Ltd. Vs. Commissioner of Customs [2016 (236) E.L.T. 472 (Del.)] holding that the conditions of mandatory pre-deposit would apply to all the appeals filed on or after 6.8.2014. To the same effect is the decision of the Hon ble Allahabad High Court in the case of Ganesh Yadav Vs. Union of India [2015 (320) E.L.T. 711 (All.)] as also the decision of the Hon ble Allahaba .....

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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 the Act, as amended, an appellant has to deposit the duty and penalty as stipulated and unless the appellant were to do so, the Tribunal shall not entertain any appeal. This provision would, therefore, indicate that it would apply to all appeals wh .....

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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 opening words of Section 35F(1) of the Act as well as by the second proviso to the provision, it is clear that appeals which are filed on and after the enforcement of the amended provision on 6 August, 2014 shall be governed by the requirement of pre .....

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Rishabchand Vs. Commissioner of Customs (Appeals-I), Chennai [2015 (324) E.L.T. 48 (Mad.)]. One also can Refer to the decision of Hon ble High Court of Punjab & Haryana in the case of Super Threading (India) Pvt. Ltd. Vs. Union of India [2015 (323) E..L.T. 119 (P&H)] laying down that there is no requirement of any pre-deposit where the lis commenced prior to 6.8.2014. It is found that the said decision of the High Court of Punjab & Haryana in the case of Super Threading (India) Pvt. .....

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