2022 (5) TMI 9
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....sit of 7.5% of the duty subject to the amount specified in the first proviso to Section 35(F) of the Central Excise Act, 1944 (as amended vide the Finance (No. 2) Act, 2014 (No. 25 of 2014), published in Gazette of India, Extraordinary No.29, dated 06.08.2014). 3. The petitioner has taken a stand that the valuation of iron ore pellets cleared from its unit should have been in terms of Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 inasmuch as the clearance of said iron ore pellets were made to its own units which cannot be comprehended within the meaning of "related units", rather than modalities prescribed under Rule 4 of said Rules as claimed by the Revenue. Therefore, the differential amount sought to be raised by way of demand is arbitrary and contrary to already settled cases by the Courts/CESTAT. It is further stated by the petitioner that acute hardship faced by the Petitioner-Company coupled with strong prima facie case would entitle it to claim waiver of pre-deposit under Section 35F of the Central Excise Act, 1944. 4. This Court vide order dated 17th April, 2018 had directed the Opposite Party to take no coercive action pu....
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....al can be filed, but may not be heard on merit unless the pre-deposit condition is met. The pre-deposit condition is imposed to regulate the procedure of appeal. Therefore, in such an eventuality, where there is no prohibition for filing the memorandum of appeal without meeting the predeposit condition, the appeal can be heard only after meeting it." 8. As is revealed from the record, it is admitted fact that the petitioner had not deposited as statutorily required to do under Section 35F of the Central Excise Act. However, enclosing copy of e-receipt to the Memo dated 19.04.2022 the counsel for the petitioner submitted that the petitionercompany has made a payment of Rs.10,00,00,000/- (rupees ten crores) which is the maximum amount specified under the first proviso to Section 35F of the Central Excise Act for compliance of mandatory requirement for entertainment of appeal. 9. Section 35F of the Central Excise Act, 1944 has been amended by way of substitution vide the Finance (No. 2) Act, 2014 (No. 25 of 2014), published in Gazette of India, Extraordinary No.29, dated 06.08.2014, upon receipt of assent of the President of India on 6th of August, 2014. For convenience, position p....
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....against the decision or order referred to in clause (a) of subsection (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 subsection (1) of Section 35B, unless the appellant has deposited ten 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; 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. 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 6 of the CENVAT Credit Rules, 2001 or the CENVAT Credit Rul....
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.... Court, of enabling the Appellate Authority to override the limitation prescribed by the statute and go against the requirement of pre-deposit." The Hon'ble Supreme Court in the said case being Tecnimont Pvt. Ltd. Vrs. State of Punjab, 2019 SCC OnLine SC 1228 further observed as follows: "30. As stated in P. Laxmi Devi, (2008) 4 SCC 720 and Har Devi Asnani, (2011) 14 SCC 160, in genuine cases of hardship, recourse would still be open to the concerned person. However, it would be completely a different thing to say that the Appellate Authority itself can grant such relief. As stated in Shyam Kishore, (1993) 1 SCC 22 any such exercise would make the provision itself unworkable and render the statutory intendment nugatory." 12. This Court in Indian Oil Corporation Vrs. Odisha Sales Tax Tribunal, Cuttack, 2009 (Supp.1) OLR 928 = 109 (2010) CLT 355, made the following observations with regard to right of appeal: "7. Further, there can be no quarrel to the settled legal proposition that right of appeal may not be absolute. The Legislature can put conditions for maintaining the same. In Vijay Prakash D. Mehta & Jawahar D. Mehta Vrs. Collector of Customs (Preventive), Bombay, AIR 1....
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....o power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not." 11. Similar view has been reiterated by the Hon'ble Supreme Court in The Commissioner of Income-tax, West Bengal-I, Calcutta Vrs. M/s. Vegetables Products Ltd., AIR 1973 SC 927. 12. It is the settled legal position that taxing statute must be construed strictly. (vide Manish Maheshwari Vrs. Assistant Commissioner of Income-tax & ors., AIR 2007 SC 1696; Southern Petrochemical Industries Co. Ltd. Vrs. Electricity Inspector & ETIO & ors., AIR 2007 SC 1984; and Bhavya Apparels (P) Ltd. & anr. Vrs. Union of India & anr., (2007) 10 SCC 129. 13. In view of the above, it becomes evident that the appeal is a statutory right, which can be created only by the Legislature and it does not lie by acquiescence/consent of the parties or even the writ Court is not competent to create the appellate forum if not provided under the statute. If Legislature in its wisdom has imposed certain conditions, like pre-deposit for the purpose of filing or hearing of the appeal, the Courts are supposed to give strict ....
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.... right of appeal is a creation of statute and the legislature is competent to determine the conditions on which an appeal would lie. These are not the cases of amending or repeal of a statute, therefore, such judgments are not applicable to the questions arising in the present application." 14. This Court, in Jindal Stainless Ltd. Vrs. State of Odisha, reported in (2012) 54 VST 1 (Ori) delved into the question as to whether the condition precedent for pre-deposit of tax or interest or both in dispute in addition to payment of admitted tax for entertaining an appeal as provided under Section 77(4) of the Odisha Value Added Tax Act, 2004 read with proviso to Rule 87 of the OVAT Rules, 2005 was unreasonable, oppressive, violative and ultra vires of Article 14 of the Constitution of India and answered as follows: "25. Therefore, it becomes crystal clear that appeal is a statutory remedy and the same is maintainable provided that the Statute enacted by a competent Legislature provides for it. Further, there can be no quarrel that the right of appeal cannot be absolute and the Legislature can put conditions for maintaining the same. 26. For the reasons stated above, the decisions ....
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.... on the ground of being harsh, on the anvil of Article 14 of the Constitution of India otherwise, every tax payer will feel every legislation relating to taxation to be a harsh one. The broader classification is to be seen and not the micro classification." Against such lucid analysis of amended provisions in Section 35F vis-à-vis provisions as they stood prior to amendment being challenged before the Hon'ble Supreme Court in S.L.P.(C) No. 31297 of 2016 [Satya Nand Jha Vrs. Union of India], the same came to be dismissed vide Order dated 07.11.2016. 16. In the case of Santani Sales Organisation Vrs. Central Excise, Customs and Service Tax Appellate Tribunal, Delhi and others, Writ Petition (Civil) No. 4551 of 2017, vide Judgment dated 31st May, 2018 it is said that: "12. It is clear from the aforesaid provisions that a graded scale of pre-deposit has been provided. In case of first appeal, whether before the Tribunal or before the Commissioner (Appeals), 7.5% of the duty and penalty in dispute must be deposited. In case of second appeal before the Tribunal, the amount gets enhanced from 7.5% to 10%." 17. The position as of now stands can be summarized as: prior to 06.0....