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M/s. Hindalco Industries Ltd., M/s. Encon Enterprises Pvt. Ltd., M/s. Siemens Ltd., M/s. Tarasafe International Pvt. Ltd., and others Versus Commissioner of Central Excise, Kolkata-II, Commissioner of Central Excise & Service Tax, Siliguri, Commissioner of Customs (P) , Patna

2016 (9) TMI 76 - CESTAT KOLKATA

Waiver of pre-deposit - Section 35F(iii) of the Central Excise Act, 1944 - Section 129E of the Customs Act, 1962 - CBEC Circular No.984/8/2014-CX dated 16.09.2014 – defective memos - whether Appellants are required to deposit an additional 10% of duty confirmed, while filing Appeal before CESTAT against Orders passed by the first appellate authority over and above 7.5% deposit made before the first appellate authority ? – Held that: - After success at the level of first appellate authority may b .....

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482/16, C/75880-75887/16 - Order No. FO/A/75948-75963/2016 - Dated:- 31-8-2016 - Shri H. K. Thakur, Member ( Technical ) Shri Ravi Raghavan, Advocate, Miss Satabdi Chatterjee, Advocate, Sanjay Bhowmik, Advocate, Vikram Khaitan, C.A., Navin More, C.A. for the Appellant Shri Rajeev Gupta, Commr.(AR), K.Chaudhary, Supdt.(AR), A.Roy, Supdt.(AR), S.S.Chattopadhyay, Supdt.(AR) & S.Mukherjee, Supdt.(AR) for the Revenue ORDER Per Shri H. K. Thakur Defect Memos were issued to the Appellants by CESTAT .....

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that as per the language of Section 35F of the Central Excise Act, 1944 and Section 129E of the Customs Act, 1962, read with CBEC Circular No.984/8/2014-CX dated 16.09.2014, only differential 2.5% of deposit is required to be paid as the remaining 7.5% of the deposit was already made before the first appellate authority at the time of admitting of Appeals before Commissioner(Appeals). Learned Advocate made the Bench go through para 2.1 of the CBEC Circular dated 16.09.2014 to argue that only 10 .....

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eposited 7.5% before the first appellate authority, should be required to pay only additional 2.5% of duty confirmed as deposit. 3. S/Shri Rajeev Gupta, Commr.(AR), K.Chaudhary, Supdt.(AR), A.Roy, Supdt.(AR), S.S.Chattopadhyay, Supdt.(AR) & S.Mukherjee, Supdt.(AR) appeared on behalf of the Revenue. Shri Rajeev Gupta, Commr.(AR) argued that in all other Benches of CESTAT Appellants are paying 10% of deposit in addition to 7.5% deposit made before the first appellate authority. That in Kolkata .....

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ment of 10% of the duty demanded where duty or duty and penalty are in dispute, or penalty, where penalty alone is in dispute. 4. Heard both sides and perused the case records. The issue involved in the present proceedings is whether Appellants are required to deposit an additional 10% of duty confirmed, while filing Appeal before CESTAT against Orders passed by the first appellate authority [Commissioner(Appeals)] over and above 7.5% deposit made before the first appellate authority. The case o .....

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demanded or penalty imposed before filing appeal. The Tribunal or 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 officer of Central Excise lower in rank than the [Principal Commissioner of Central Ex .....

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ifically mention whether 10% deposit required before Appeal is entertained should be inclusive or exclusive of 7.5% deposit made before the first appellate authority. It is a well known fact that success rate of departmental cases before the appellate authorities is very poor. That is the reason that percentage of deposit required to be made before the first appellate authorities is as low as 7.5% of the disputed amounts or penalties. After success at the level of first appellate authority may b .....

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