TMI Blog2019 (8) TMI 1809X X X X Extracts X X X X X X X X Extracts X X X X ..... , preferred by an assessee after 6th August, 2014, would, therefore, amount to allowing the CESTAT to act in violation, not only of the main body of Section 35F but also of the second proviso thereto, and would reduce the command of the legislature to a dead letter - the prayer of the petitioner for being permitted to prosecute its appeal before the CESTAT without complying with the condition of mandatory pre-deposit, cannot be granted. There is, therefore no substance in these writ petitions which are, consequently, dismissed. Petition dismissed. - W.P.(C) 2178/2019 And W.P.(C) 2179/2019 - - - Dated:- 28-8-2019 - The Chief Justice And Mr. Justice C. Hari Shankar, J. For the Petitioner : Mr. L. Badri Narayanan, Ms. Charnya Lakshmi Kumaran, Mr. Yogendra Aldak, Mr. Kunal Kapoor and Ms. Avisha Khatri, Advs. For the Respondent : Mr. Satish Aggarwala, Sr. Standing Counsel with Mr. Gagan, Adv. ORDER D.N. PATEL, CHIEF JUSTICE (ORAL) CM APPL. 10241/2019 (exemption) in W.P. (C) 2178/2019 CM APPL. 10243/2019 (exemption) in W.P. (C) 2179/2019 Allowed, subject to all just exceptions. Applications stand disposed of. W. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible to do so, decide such application within thirty days from the date of its filing. 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 57CC of Central Excise Rules, 1944; (iv) amount payable under rule 6 of Cenvat Credit Rules, 2001 or Cenvat Credit Rules, 2002 or Cenvat Credit Rules, 2004; (v) interest payable under the provisions of this Act or the rules made thereunder. 4. With effect from 6th August, 2014, however, Section 35F of the Act stands substituted by Section 105 of Finance (No.2) Act, 2014. As substituted, Section 35F reads thus: 35F. Deposit of certain percentage of duty 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complied with the requirement of pre-deposit of 7.5 % of the duty demand confirmed against it, as required by Section 129E of the Customs Act, 1962 (which is in pari materia with Section 35F of the Central Excise Act.) Assailing the said order, ATL sought to contend, before this Court, that, as show cause notice had been issued to it prior to the amendment of Section 35F, the requirement of the mandatory pre-deposit as engrafted in the statute by the said amendment would not apply. Reliance was placed, inter alia on the judgment of the Supreme Court in Hossein Kasam Dada (India) Limited v. The State of Madhya Pradesh, 983 (13) ELT 1277 (SC) on which the petitioner, too, places reliance, in the present writ petition. 11. This Court noted that the amended Section 35F of the Act, and Section 129E of the Customs Act, 1962, had come in for incisive examination, by the High Court of Allahabad, speaking through Dr. D.Y. Chandrachud, Chief Justice, (as his Lordship then was), in Ganesh Yadav v U.O.I., 2015 (320) ELT 711 (All), in respect of which para 9 of the judgment of this Court observes as under: 9. Dealing with the specific question as to whether the amended Section 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the said date. Therefore, what is to be seen is the date of filing of the appeal. If the appeal is filed on or after 6th August 2014 then the condition stipulated in the amended Section 129E of the Act has to be fulfilled for the appeal to be entertained. 12. The Court notes that as far as the present case is concerned, the CESTAT had to apply the second proviso to the amended Section 129E of the Act since the appeal before it was filed after 6th August, 2014. Before this Court there is no challenge in these proceedings to the validity of the amended Section 129E of the Act. As regards the interpretation of the amended Section 129E of the Act, the Court concurs with the decision of the Allahabad High Court in Ganesh Yadav v. Union of India (supra) in the context of the identically worded Section 35F of the CE Act and holds that the amended Section 129E of the Act will apply to all appeals filed under Section 130 of the Act on or after 6th August, 2014. (Emphasis supplied) 13. The Division Bench of the High Court of Jharkhand, speaking through one of us (D.N.Patel, Chief Justice), also examined, in detail, the amendment of Section 35F of the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of mandatory pre-deposit, this Court, in exercise of the inherent powers conferred on it by Article 226 of the Constitution of India, it was always possessed of the jurisdiction, in an appropriate case, to allow the appellant to prosecute its appeal before the CESTAT, without requiring to pay the mandatory pre-deposit. 17. To support this submission, he has placed reliance on the judgments of this Court in Pioneer Corporation v. Union of India, 2016 (340), ELT 63, Shubh Impex v. Union of India, 2018 (361) ELT 199 (Del) and Manoj Kumar Jha v. DRI, 2019 (365) ELT 166 (Del). 18. He submits that it was in view of the said decisions that this Court had, vide its order dated 8th March, 2019, passed in the present appeal, directed the respondent to ascertain the true financial status of his client. 19. There is no gainsaying the fact that, in Pioneer Corporation (supra) this Court, even while dealing with a case in which the appeal had been filed before the CESTAT after 6th August, 2014, nevertheless, allowed the appeal to be prosecuted on payment of partial pre-deposit, given the financial stringency in which the appellant, before it, was placed. 20. Shubh Impex ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non- speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court. xxx xxx xxx 44. To sum up our conclusions are:- xxx xxx xxx (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. xxx xxx xxx (Emphasis supplied) 26. In view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 395. 32. Inasmuch as the judgment in Pioneer Corporation (supra), Shubh Impex (supra) and Manoj Kumar Jha (supra) are contrary to the law laid down in Anjani Technoplast (supra) as well as to the law laid down in Vice-Chancellor, University of Allahabad v. Dr. Anand Prakash Mishra (supra), A.B.Bhaskara Rao v. C.B.I. (supra), Manish Goel v. Rohini Goel (supra) and State of Bihar v. Arvind Kumar (supra), none of which have been noticed in the said decisions, it is not possible for us to follow the decisions in Pioneer Corporation (supra), Shubh Impex (supra) and Manoj Kumar Jha (supra), on which Mr. L. Badri Narayanan places reliance. 33. In view of the aforesaid facts, reasons and judicial pronouncements, the prayer of the petitioner for being permitted to prosecute its appeal before the CESTAT without complying with the condition of mandatory pre-deposit, cannot be granted. There is, therefore no substance in these writ petitions which are, consequently, dismissed. 34. At this stage, Mr. L. Badri Narayanan prays for extension of the time granted by the CESTAT, vide its order dated 29th January, 2019 to effect pre-deposit, so that his client could revive its appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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