Custom, Excise & Service Tax Tribunal
) M/S. Ai Champdany Industries Ltd vs Commr. Of Central Excise- Kolkata-Iv on 5 January, 2015
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EAST REGIONAL BENCH : KOLKATA
Stay Petition Nos.-76575/2014,76754/14,76755/14 & 76756/2014
AND
Excise Appeal Nos.76357/2014,76566/14,76567/14 & 76568/2014
(Arising out of the Order-in-Original No.19/Commissioner/CE/Kol-IV/2014 dated-11/07/2014 passed by the Commissioner of Central Excise, Kolkata-IV)
For approval and signature of:
DR. D.M. MISRA, HONBLE JUDICIAL MEMBER
DR. I.P. LAL, HONBLE TECHNICAL MEMBER
======================================================
1. Whether Press Reporters may be allowed to see :
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not ?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
Authorities ?
1) M/s. AI Champdany Industries Ltd.
2) M/s. Murlidhar Ratanlal Exports Ltd.
APPELLANT(S)
VERSUS
Commr. of Central Excise- Kolkata-IV
RESPONDENT(S)
APPEARANCE
1)Sri J.P. Khaitan, Sr. Advocate
Sri P. Banerjee, Advocate
2)Dr. Samir Chakraborty, Advocate
3) Sri Arvind Baheti, C.A. & Sri S. Bagaria, Advocate
FOR APPELLANTS
Sri S. Sharma, Commr. (A.R.) &
A.K. Biswas, Supdt. (A.R.) (A.R.)
FOR THE RESPONDENTS
CORAM:
DR. D.M. MISRA, HONBLE JUDICIAL MEMBER
DR. I.P. LAL, HONBLE TECHNICAL MEMBER
DATE OF HEARING & DECISION : 05.01.2015
ORDER NO.FO/A/75007-75010/2015
Per DR. D.M. MISRA
The following appeals have been placed by the Registry before the Bench on 22/12/2014 for appropriate directions, in view of the CESTAT Circular dt. 14th Oct.2014 as the appellants had not complied with the Provisions of Section 35F of CEA, 1944, even though all these appeals were filed on or after 6th of August, 2014.The following amounts had been confirmed and involved in the respective Appeals:
Name of the Appellant Central Excise Duty Penalty M/s. AI Champdany Industries Ltd.
Rs.15,64,57,286/-
Rs.15,64,57,286/-
Murlidhar Ratanlal Exports (Appeal No. E/76567/14) Rs.16,26,25,433/-
Rs.16,26,25,433/-
Murlidhar Ratanlal Exports (Appeal No. E/76566/14 Rs.17,48,41,004/-
Rs.17,48,41,004/-
Murlidhar Ratanlal Exports (Appeal No. E/76568/14 Rs.12,52,62,363/-
Rs.12,52,62,363/-
2. The Ld. A.R. for the Revenue on the said date sought adjournment and accordingly, the matter was adjourned to 05th of January, 2015.
3. The Ld. Sr. Advocate submits that all these appeals have been filed against the respective orders which were passed prior to the amendment to Section 35F of CEA, 1944. Accordingly, the amended Section 35F of CEA,1944 which came into force from 06.08.2014 would not be applicable to theses appeals filed against such orders. In support of his contention the Ld. Sr. Advocate referred to the judgment of the Honble Supreme Court in the case of Hosein Kasam Dada (India) Ltd. Vs. State of M.P. -1983 (13) ELT 1277 (SC).
4. The Ld. A.R. for the Revenue on the other hand submitted that the said judgment of the Honble Supreme Court has been discussed in the later judgments of the Honble Supreme Court, namely, in the case of Navin Chandra Chhotelal Vs. Central Board of Excise & Customs -1981 (8) E.L.T. 679 (S.C) and Vijay Prakash D. Mehta Vs. Collector of Customs -1989 (3) E.L.T. 178 (S.C.) in the context of Section 129E of Customs Act,1962. It has been categorically laid down in these judgment that the right to appeal is not an unfettered right but subject to conditions/limitation. It has also been held that non-compliance with Sec.129E of the Customs Act,1962 would result in dismissal of the Appeal. He has also brought to our notice that the Mumbai Bench of this Tribunal in the case of M/s Bhatia Global Trading Ltd. Vs. Commissioner Customs(Preventive),Mumbai 2014-TIOL-2637CESTAT-Mum, considering all aspects, had dismissed the Appeals filed after 06.08.2014 for not compliance with the amended Sec.129E of the Customs Act,1962.
5. We have considered the submissions advanced by both sides. We find that amended Section 35F of CEA,1944 which is also amended on similar line with Sec.129E of CA,1962, reads as:
[SECTION 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 passed by an officer of Central Excise lower in rank than the [Principal Commissioner of Central Excise or Commissioner 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 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 Rules, 2002 or the Cenvat Credit Rules, 2004.]
6. A plain reading of the aforesaid provision makes it abundantly clear that the Tribunal or Commissioner shall not entertain any appeal under Section 35 unless the appellant has made pre-deposit of applicable amount mentioned in the said provision. Therefore, in terms of the amended Section 35F of CEA,1944 w.e.f. 06th August, 2014, this Tribunal is barred from entertaining any appeal unless pre-deposit as mentioned in Section 35F is complied with. It is a cardinal principle of statutory interpretation that while incorporating a statute or a provision into the existing statute, the Legislatures are fully aware of the position of law as was prevailing on the date of new legislation or bringing the change into the existing legislation. We find the law i.e. amended Sec.35F of CEA,1944 is very clear and unambiguous and the intention of the legislature is also loudly made clear about its applicability. Needless to emphasize, the Tribunal is a creature of the statute and accordingly bound by the statute as has been held recently by the Honble Andhra Pradesh High Court in the case of Maa Mahamaya India Ltd. Vs. CCE, C & ST, Vishakhapatnam-I 2014(310) ELT 244(A.P.). Also, we find that the co-ordinate Bench at Mumbai in M/s Bhatia Global Trading Ltd. Vs. Commissioner Customs(Preventive),Mumbai(supra) has dismissed the Appeals filed after 06.08.2014 for non-compliance with the statutory requirement of pre-deposit. In view of the above, these appeals are not maintainable and accordingly, the same are dismissed.
(Dictated and pronounced in the open Court)
Sd/- 09/01/15 Sd/- 09/01/2015
(DR.I.P.LAL) (DR. D.M. MISRA)
TECHNICAL MEMBER JUDICIAL MEMBER
k.b/-
Excise Appeal Nos.76357/2014,76566/14,76567/14 & 76568/2014
Excise Appeal Nos.76357/2014,76566/14,76567/14 & 76568/2014
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