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M/s Asr Multimetals Pvt Ltd, M/s Gokul Refoils & Solvent Ltd, M/s Aci Industrial Organic Pvt Ltd Versus Commissioner of Customs, Commissioner of Central Excise, Customs and Service Tax (Appeals)

2016 (10) TMI 946 - CESTAT AHMEDABAD

Waiver of pre-deposit - 7.5% was deposited before filing an appeal before Commissioner (Appeals) - Now whether appellant is required to deposit entire 10% amount in addition to deposit made earlier or only 2.5% after adjustment of the amount paid earlier, for filing an appeal before the tribunal - Compliance of amended provision of Section 129E/35F of the Customs Act,1962/ Central Excise Act,1944 - interpretation of statute - Held that: - on reading of provisions it is found that the wordings em .....

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5% and not 10% as prescribed under the said provision in view of the settled principle of statutory interpretation - reliance placed on the decision of Greatship(India) Pvt. Ltd. Vs. Commissioner of Service Tax, Mumbai-I [2015 (4) TMI 1006 - BOMBAY HIGH COURT] where it was held that it is settled position of law that in taxing statute, the Courts have to adhere to literal interpretation. At first instance, the Court is required to examine the language of the statute and make an attempt to derive .....

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- We do not find substance in the argument that the amount paid under clause(i) of Sec.129E/35F which was paid at the time of filing Appeal before the first Appellate Authority can be adjusted against the amount of deposit required to be made under clause(iii) while filing the Appeal before this forum - appeal dismissed - decided against appellant. - Appeal No. C/10609/2015, C/10938/2015, E/10467/2015, Application No. E/others/10342/2016 - ORDER No. A/11211-11213/2016 - Dated:- 24-10-2016 - D .....

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pellants have not complied with the amended provision of Section 129E/35F of the Customs Act,1962/ Central Excise Act,1944, applicable to the respective appeals, by depositing the requisite amount of 10% of the duty/ penalty or duty and penalty, as the case may be at the time of filing the said Appeals. It is argued at the Bar that since the respective Appellants had deposited 7.5% at first appellate stage, before the Ld. Commissioner(Appeals), hence, they are required to deposit the balance 2.5 .....

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ribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal, (i) under sub-section (1) of section 128, 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 customs lower in rank than the [Principal Commissioner of Customs or Commissioner of Customs]; (ii) against the decision or orde .....

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n 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 rupees ten 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 (No. 2) Act, 2014. ***** Section 35F : Deposit of certain percentage of duty demanded or penalt .....

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r 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 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 th .....

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afore said provisions, we find that the wordings employed there in is as clear as daylight. In clasue (iii) it is unambiguously prescribed that any person aggrieved by a decision or order referred to Clause (b) of sub- Section (1) of Sec129A/35B of Customs Act/Central Excise Act, unless deposits 10% of the duty/penalty or duty and penalty, as the case may be, the appeal shall not be entertained. We do not find any reason to read the said provision in any other manner so as to come to the conclu .....

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etation. At first instance, the Court is required to examine the language of the statute and make an attempt to derive its natural meaning. The Court interpreting the statute should not proceed to add the words which are not found in the statute. It is equally settled that if the person sought to be taxed comes within the letter of the law he must be taxed, however, great the hardship may appear to the judicial mind to be. On the other hand, if the Crown seeking to recover the tax, cannot bring .....

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