9911796707
TMI Blog2025 (5) TMI 1226X X X X Extracts X X X X X X X X Extracts X X X X ..... 0810 of 2024. 2. It is submitted on behalf of the appellant that in para 7 of the said order the demand for the impugned order is mentioned as Rs. 13,66,31,566/-. But in the subsequent paragraph, the proposed demand under both the show cause notices (after adjusting the amount paid) is mentioned to be Rs. 8,29,53,025/. In the said paragraph it has been held that as per Section 35F the amount of pre-deposit is to be certain percentage of the duty confirmed and the penalty 'confirmed'. Learned counsel for the appellant impressed upon that the Tribunal by the word 'confirmed' presumed that the amount mentioned in Section 35 is the amount remaining payable by the appellant. It is submitted that the said interpretation is errone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % of the total disputed demand as stated above. Hence, no further amount needs to be deposited under Section 35F of Central Excise Act, 1944, as made applicable to Finance Act, 1994. 4. It is mentioned that the aforesaid calculation is inadvertently ignored in the final order of this Tribunal which amounts to be an error apparent on record. Hence the same is prayed to be incorporated in the said final order. The learned counsel has relied upon the decision of Hon'ble Apex Court in the case of VVF (India) Ltd. Vs. State of Maharashtra- 2023 (72) GSTL 444 (SC) / (2023) 4 Centax 421 (SC) and another decision of Bombay High Court in the case of Vinod Metal Vs. State of Maharashtra- (2023) 9 Centax 178 (Bom.). Accordingly, the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax/demand proposed in SCN in Rs. Amount of service tax confirmed in Order-in-Original in Rs. 1. 07.03.2008 16.06.2005 to 31.3.2007 4,28,08,0290/- (41968556 (service tax)+839373 (Education Cess) 4,28,08,029/- 2. 28.11.2008 April 2007 to March 2008 4,01,44,996/- (38631318 (service tax) + 1513678 (Education Cess) 4,01,44,996/- Total 8,29,53,025/- 8,29,53,025/- 8. We further observe that in show cause notice dated 7.3.2008 the total amount of service tax liability for the respective period in dispute as mentioned in table above was calculated at Rs. 8,19,47,618/- (Rs. 7,40,45,954) as the service tax + Rs. 79,01,665/- as education cess). But appellant had paid Rs. 4,73,08,029/- cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he show cause notices, had confirmed the proposed demand of Rs. 8,29,53,025/-. This observation has been appreciated in para 7 of this order, that the show cause notices had proposed the amount of tax as was short paid during the relevant period. 10. Now we peruse Section 35F of Central Excise Act, 1994, it reads as follows : "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the amount of tax determined as remaining to be paid by the appellant. As per Section 35F of sub-clause (iii) of Central Excise Act, 10% of amount in dispute/amount of duty or penalty [inclusive of 7.5% as was deposited at the time of filing the appeal before Commissioner (Appeals)] has to be paid for the appeal to be entertained by the Tribunal. 11. In the show cause notice dated 7.3.2008 the amount in dispute/the amount of short paid service tax which was proposed to be recovered for the period from 2005 to March 2007 is Rs. 4,28,08,029/-. Similarly for the second show cause notice dated 28.11.2008 the amount in dispute/proposed for the period April 2007 to March 2008 was Rs. 4,01,44,996/-. The amount which was paid as service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the ST-5) Rs. 8,29,53,025/- Pre-deposit (7.5% of the demand of duty under dispute) under Section 35F of the Central Excise Act, 1944 Rs. 62,21,447/- Amount deposited by the appellant after initiation of investigation vide challan dated 17.05.2007 (which is proposed to be appropriation in SCN dated 07.03.2008 and the same is appropriated in the Order-in-Original. Rs. 45,00,000/- Balance amount mandatorily required to be deposited as pre-deposit by the appellant 6221477 - 4500000 = Rs. 17,21,477/- 14. It is clearly apparent from the above calculation that Rs. 45 lakhs, the amount considered towards pre-deposit is still short of 10% of Rs. 8,29,53,025/-. In view of these observations, and holding that para 7 and 8 are in v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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