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Southern Cooling Towers Pvt. Ltd. Versus Customs, Excise & Service Tax Appellate Tribunal, East Zonal Bench & Others

2017 (2) TMI 99 - CALCUTTA HIGH COURT

Pre-deposit - section 35F of the Central Excise Act, 1944 - Before amendment an appellant had to deposit the entire duty and penalty. The first proviso to Section 35F provided that in case of undue hardship the tribunal might dispense with the whole or part of the said deposit. - In respect of the first assessment order the petitioner had to deposit ₹ 2.5 crores on application of the 50% deposit principle with some variation in it made by this Court and in respect of the other two asse .....

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S. Ganguli, Mr. B.P. Banerjee for respondent ORDER The Court : Before recounting the facts some discussion of the law is necessary. We are concerned here with section 35F of the Central Excise Act, 1944 before and after amendment. More particularly, we have to examine the provision with regard to the deposit of duty and penalty pending hearing of the appeal. Before amendment an appellant had to deposit the entire duty and penalty. The first proviso to Section 35F provided that in case of undue h .....

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AT, Kolkata, reported in 2015 [324] ELT 375 [Cal] very nicely summarised the law on the subject by discussing all the authorities. Her ladyship remarked in paragraph 24 even where an appellant has the financial capacity to deposit the disputed tax and/or penalty pre-deposit may have to be waived if the appellant makes out a strong prima facie case . In the present case, the assessment order dated 20th December, 2010 is involved. The writ petitioner erected cooling towers. The sub-structure is im .....

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essment year the appeal went to the tribunal, which by an order dated 23rd September, 2013 reduced the pre-deposit to 50%. There was no case of financial hardship before it. Therefore, it is to be assumed that the tribunal on consideration of the prima facie case of the writ petitioner which was the appellant before it had reduced the pre-deposit to 50%. In the present writ application preferred by the writ petitioner against this order this court by an interim order dated 26th November, 2013 di .....

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x … [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. Meanwhile, the second order of assessment for a subsequent year on the self-same issue was made by the respondent authorities on 30th March, 2012, the third order .....

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l should not be asked to reconsider its earlier decision because it has attained finality. The old Act applies in case of such deposits. Even if the tribunal has ordered 7.5% deposit that should not be applied to the first assessment because all the three cases are prior to the amendment of the Act. It is nobody s case that the amended Act applied to the second and third assessment orders. The Act before amendment applied but what is very important is that whilst applying the old Act the tribuna .....

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