Custom, Excise & Service Tax Tribunal
Dunar Foods Ltd vs Cce, Ludhiana on 8 January, 2018
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
SCO 147-148, SECTOR 17-C, CHANDIGARH-160017
DIVISION BENCH
Court-I
Appeal No.E/60073,60074 & 60075 & 60521-60523/2016
(Arising out of OIO No.JAL-EXCUS-000-COM-03 to 05-15-15 dated 10.6.2015 passed by the CCE, Ludhiana)
Date of Hearing/Decision: 08.01.2018
Dunar Foods Ltd. Applicant
Dunar Foods Ltd.
Dunar Foods Ltd.
Jaipal Dabra, General Manager
Jaipal Dabra, General Manager
Dunar Foods Ltd.
Vs.
CCE, Ludhiana Respondent
Present for the Appellant: M/s.Singh Associates Present for the Respondent: Shri G.M.Sharma, AR Coram: Honble Mr.Ashok Jindal, Member (Judicial) Honble Mr.Devender Singh, Member (Technical) FINAL ORDER NO.60022-60027/2018 PER: ASHOK JINDAL Vide Stay Order No.60566-60571/2017 dated 04.12.2017, the appellants were directed to deposit mandatory pre-deposit in terms of Section 35F of Central Excise Act, 1944 within four weeks and to report compliance today.
2. When the matter was called today, no compliance has been made of the Stay Order dated 04.12.2017. Therefore, we dismiss the appeals for non compliance of the Stay Order dated 04.12.2017.
(dictated & Pronounced in the open court)
(DEVENDER SINGH) (ASHOK JINDAL)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
mk
PER: DEVENDER SINGH
28. Having gone through the order of my brother Member (Judicial), I pass a separate order.
29. On examination of the issues, I find force in the contention of the Ld. Advocate for the Revenue that the interim order dt. 24.04.2015 of the Honble Punjab and Haryana High Court in the case of Super Threading (India) Pvt. Ltd. is not a binding precedent as the writ petition was disposed of by the Honble High Court as infructuous. The Honble High Court had granted interim relief to the petitioner and after disposing of the stay application by this Tribunal, the Honble High Court found that nothing survives in the writ petitions filed by the petitioners. The order passed by the Honble High Court thus remained an interim order as the petition was disposed of as infructuous and no final judgment/decision emanated. It is settled principle that interim orders are purely in the nature of an interim modality and workable formula or workable arrangement depending on the balance of convenience and not a binding precedent. In this regard, the Honble Supreme Court in the case of Amresh Tiwari Vs. Lalta Prasad Dubey and another (2000) 4 SCC 440 == 2000 SCC(Cri) 806 held as under:-
It is settled law that interim orders, even though they may have been confirmed by the higher courts, never bind and do not prevent passing of contrary order at the stage of final hearing. In the case of Calvin Wooding Consulting Ltd. Vs. CCE, Mysore 2007 (7) STR (411) (Tri.-Del.), this Tribunal made following observation:-
Needless to say that, when an Interim Order is not binding in finally deciding the very appeal in which it is passed, it can hardly constitute a binding precedent. In these circumstances, with great respect, the interim order dt. 24.04.2015 of Honble High Court in the case of super Threading (India) Pvt. Ltd. (supra) cannot be treated as a binding precedent.
30. I find that there are direct judgments of four different High Courts on the issue falling under consideration i.e. whether the amended Section 35F of Central Excise Act, 1944 would apply to the appeals filed after 06.08.2014 wherein the show cause notice was issued before 06.08.2014. In the case of M/s Dream Castle Vs. UOI 2016 (43) STR 25 (Mad.), Nimbus Communication Ltd. Vs. Commissioner of Service Tax, Mumbai-IV 2016 (44) STR 578 (Bom.), Ganesh Yadav Vs. UOI 2015 (320) ELT 711 (All.) and Pioneer Corporation Vs. UOI 2016 (340) ELT 63 (Delhi), the Honble High Courts have answered the question affirmatively.
31.1 In the case of M/s Dream Castle Vs. UOI (supra), the Honble Madras High Court held as under:-
76.?We do not know how the above passage goes to the rescue of the assessees. The argument of the assessees in the cases on hand is that the amendment would apply only to the proceedings that commence with the issue of show cause notices on or after 6-8-2014. In other words, the contention of the writ petitioner before us is that if a show cause notice had been issued on 5-8-2014, the amended provisions will not apply to an order-in-original passed in pursuance of the same, even if such an order is passed after 6-8-2014. The above Circular does not support this contention of the petitioner.
77.?Lastly it is contended by Mr. Joseph Prabhakar that the assessees do not stand to gain by fighting on pre-deposit condition. If they lose the battle after exhausting all avenues, the assessees are obliged to pay the amount due, together with interest at a higher rate. Therefore, it is his contention that a provision that grants a temporary reprieve to the assessees need not necessarily be interpreted in such a harsh manner.
78.?But we do not agree. In fact the assessees should be more happy that they are not thrown at the mercy of the Appellate Authorities for considering the question of waiver of pre-deposit condition. The law now fixes a standard rate, applicable to all persons uniformly, without subjecting the assessees to the vagaries of weather prevailing in the offices of the Appellate Authorities/Tribunals.
79.?We have actually come across several cases where the Tribunal has granted waiver of different percentages in cases of identical nature, without any rhyme or reason. In fact this Court is burdened with appeals both under Section 35G of the Central Excise Act and Section 130 of the Customs Act, against the orders of the Tribunal granting or refusing to grant waiver. Therefore, the amendment to the provision has actually taken away the possibility of an arbitrary exercise of power and along with it, the threat of multiplicity of proceedings even at the stage of waiver applications.
80.?Therefore, we are of the considered view that the writ petition in W.P. No. 13431 of 2015 seeking a declaration that the amended Section 35F of the Central Excise Act, 1944, is applicable only to show cause proceedings initiated on or after 6-8-2014 is liable to be dismissed. Accordingly it is dismissed. There will be no order as to costs. 31.2 In the case of Nimbus Communication Ltd. Vs. Commissioner of Service Tax, Mumbai-IV (supra), the Honble Mumbai High Court has held as under:-
21.Having perused this judgment of the? Division Bench and its reasoning, we are clear that Section 35F cannot be held to be unconstitutional. Section 35F only ensures that the appeal shall not be entertained unless the amount to the extent mentioned therein is secured. The interest of the Revenue which has to be secured was the paramount consideration in both the unamended and amended provision. Now there is a specific stipulation and the extent to which the interest of the Revenue has to be secured is also clarified. Once there is a clear indication from the language of the Statute and which is plain and unambiguous, then, we do not think that the view taken by the Kerala High Court can be accepted. We would prefer to agree with the Honble Division Bench of the Allahabad High Court in Ganesh Yadav (supra). This is not a case where the principle in Garikapatti Veeraya (supra) relied upon by Mr. Dada can be applied and for the reasons which have been assigned by the Allahabad High Court.
22. The view taken by the Division Bench of? the High Court of Madras in Dream Castle (supra), with respect, is also in consonance with the statutory prescription and the intent. It has referred to all the decisions in the field and the rival contentions. The Division Bench of the Allahabad High Court and all other judgments, including of the Kerala High Court have been extensively referred to. The independent reasoning of the Division Bench of the High Court of Madras is, with respect, rightly construing and interpreting the statutory provision. As held by the Division Bench of the High Court of Madras, the substantive provision Section 35F after its amendment, is not capable of any other interpretation. Though the second proviso was referred, but the Division Bench independent thereof, agreed with the contention of the Revenue which is that the amended provision would have to be applied to all such appeals as falling within the second proviso.
23. We also arrive at the same conclusion? and, therefore, it is not necessary for us to reproduce each and every paragraph from the judgment of the High Court of Madras. Once we broadly agree with Ms. Cardozo that the prescription as is carved out by Section 35F would apply to all such appeals and stay applications as are referred to in the second proviso, then, it is not possible to agree with the appellants Senior Counsel. More so, when the order-in-original was challenged in appeal which is filed in this case after 6th August, 2014, and the stay application was also after this date. Hence, the amended section is rightly applied to the above undisputed factual position.
24. We do not think that any provision of? the nature pointed out in this appeal defeats or renders the vested right of appeal illusory. A very reasonable condition has been imposed and that, to our mind, in no way affects the vested right of appeal.
25. For the aforesaid reasons, we agree with? the view taken by the Tribunal. We dismiss the appeal. There will be no order as to costs.
26. At this stage, Mr. Dada learned Senior? Counsel submits that this Court should grant six months time to the appellant to comply with the statutory requirement and deposit the seven and a half per cent of the demand of duty and/or penalty in terms of the amended provision. This request is opposed by Ms. Cardozo.
27. Having heard both sides on this point,? we direct that if the appellants deposit the sum mandated by Section 35F(1) with its provisos within a period of three months from the date of receipt of a copy of this order, the Tribunal shall entertain the said appeal and decide it on merits and in accordance with law. On failure, its earlier direction would stand and then it will not be open for the appellant to avail of the appellate remedy. We would not extend this time under any circumstances. 31.3 In the case of Ganesh Yadav Vs. UOI (supra), the Honble Allahabad High Court held as below:-
19.?Parliament while substituting the provisions of Section 35F of the Central Excise Act, 1944 by Finance Act (No. 2) of 2014, has laid down that the Tribunal or the Commissioner (Appeals) shall not entertain any appeal unless the appellant has deposited the duty or, as the case may be, a penalty to the stipulated extent. These words in Section 35F of the Act would indicate that on and after the enforcement of the provision of Section 35F of the Act, as amended, an appellant has to deposit the duty and penalty as stipulated and unless the appellant were to do so, the Tribunal shall not entertain any appeal. This provision would, therefore, indicate that it would apply to all appeals which would be filed on and from the date of the enforcement of Section 35F of the Act.
20.?The intendment of Section 35F of the Act is further clarified by the second proviso which stipulates that the provisions of the section shall not apply to stay applications and appeals which were pending before any appellate authority prior to the commencement of Finance (No. 2) Act, 2014. The second proviso is a clear indicator that Parliament has exempted the requirement of complying with the pre-deposit as mandated by Section 35F(1) of the Act as amended only in the case of those stay applications and appeals which were pending before any appellate authority prior to the commencement of Finance (No. 2) Act, 2014. Consequently, both by virtue of the opening words of Section 35F(1) of the Act as well as by the second proviso to the provision, it is clear that appeals which are filed on and after the enforcement of the amended provision on 6 August, 2014 shall be governed by the requirement of pre-deposit as stipulated therein. The only category to which the provision will not apply that would be those where the appeals or, as the case may be, stay applications were pending before the appellate authority prior to the commencement of Finance (No. 2) Act, 2014.
21.?Our attention has been drawn to a judgment of the learned Single Judge of the Kerala High Court in Muthoot Finance Ltd. v. Union of India - 2015-TIOL-632-HC-KERALA-ST = 2015 (320) E.L.T. 51 (Ker.). The Kerala High Court has referred to an interim order passed by the Andhra Pradesh High Court in K. Rama Mohanarao v. Union of India - 2015-TIOL-511-HC-AP-CX. The Kerala High Court while adverting to the interim order referred to the settled law that the institution of a suit carries with it an implication that all rights of appeal then in force are preserved to the parties. With great respect, the judgment of the learned Single Judge of the Kerala High Court has not considered the express language which has been used in the amended provisions of Section 35F(1) of the Act. The order of the Andhra Pradesh High Court which was relied upon in the judgment of the Kerala High Court is only an interim order.
22.?For these reasons, we hold that the petitioner would not be justified in urging that the amended provisions of Section 35F(1) of the Act would not apply merely on the ground that the notice to show cause was issued prior to the enforcement of Finance (No. 2) Act, 2014. We find no merit in the constitutional challenge. The petition shall accordingly stand dismissed for the aforesaid reasons.
31.4 Similar view was taken by the Honble Delhi High Court in the case of Pioneer Corporation (supra). It is also pertinent to mention that in a recent judgment in M/s Niraj Gyanchand Jain Vs. CCE, Aurangabad- 2017-TIOL-1246-CESTAT-MUM, this Tribunal has taken the view that mandatory pre-deposit is applicable even in those cases where proceedings have been initiated prior to enactment of amended Section 35F.
32. Another plea raised by the appellant is that the Tribunal has inherent power to adjudicate the stay applications and pass orders of interim protection to the assessee de-hors the condition of mandatory pre-deposit. They have relied upon the decision of the Honble Punjab & Haryana High Court in the case of Punjab State Power Corporation Limited (supra) and argued that the provisions of Punjab Vat Act,2005 are pari materia to the Central Excise Act. Mandatory pre-deposit provisions in the VAT provisions in the Punjab VAT Act are similar to the Central Excise Act, 1944.
33. I find that though both Punjab VAT Act and the Central Excise Act are fiscal statutes, the object, incidence of tax/duty and scheme of law are different in the two Acts. Punjab VAT Act imposes taxes on sale of the goods whereas in the Central Excise Act, the duty is levied on the manufacture of the goods, but the payment of the same is deferred to the point of removal of the goods from the factory.
34. Although it is sought to be contended that the mandatory pre-deposit provisions are pari materia in the Central Excise Act and Punjab Vat Act, 2005, I find that there are material differences in the language and substance of two provisions. In the Punjab Vat Act, there are three levels of appeals upto Tribunal before the Deputy Excise Taxation Commissioner, before the Commissioner and before the Tribunal. Whereas there are only two levels of appeals upto Tribunal in the Central Excise Act before the Commissioner (Appeals) and before the Tribunal. Further, in the Punjab Vat Act, no appeal is to be entertained at any level unless there is prior minimum payment of 25% of the total additional demand, penalty, and interest. (emphasis supplied). On the contrary, in the Central Excise Act, there is graded scheme of pre-deposit of duty or penalty - duty in case where duty or duty and penalty are there and penalty where only penalty is in dispute.(emphasis supplied). Moreover, in this graded scheme, 7.5% of duty or penalty is to be deposited before appeal to the Commissioner (Appeals). For appeal to the Tribunal, further deposit of 10% of the duty or penalty is required. Further, there is a cap of Rs.10 crore on the amount that is required to be deposited under section 35F. There is no cap prescribed in Punjab Vat Act.
35. It is thus clear that there are significant differences in the wording, scheme of pre-deposit and onerousness between Section 62 of the Punjab Vat Act and Section 35F of the Central Excise Act. Besides, object, incidence of duty and scheme of law of the two Acts are different.
36. In view thereof, I hold that the Section 62 of Punjab VAT Act or Section 35F are not in par materia. The Honble Supreme Court in the case of CCE, Pune Vs. Dai Ichi Karkaria Ltd. 1999 (112) E.L.T. 353 (S.C.), has held in Para 21 that judgments relating to Income Tax or other statutes have no relevance while considering a provision in an excise statute. Hence, the decision of the Honble Punjab & Haryana High Court in the case of Punjab State Power Corporation Limited (supra) is not applicable in this case.
37. In view of the foregoing and following the judgments cited in Paras 31.1 to 31.4, I find that answer to the issue No. 1 is in the favour of the respondents and therefore I hold that the appellants are required to make the mandatory pre-deposit in terms of amended provisions of Section 35F ibid in order for the Tribunal to hear their appeal.
38. Since the applicability of amended Section 35F has been upheld by me in the instant matter, the question for consideration of waiver of pre deposit under pre-amended Section 35F is thus redundant. Hence, I am not giving any findings on the same.
(DEVENDER SINGH) MEMBER (TECHNICAL) mk As there are contrary views and difference of opinion between the Members, therefore, the matter be placed before the Honble President to refer the matter to the third member to resolve the following issues:-
POINTS OF DIFFENCE
(a) Whether interim order passed by the Honble High Court of Punjab & Haryana in the case of Super Threading Pvt. Limited in CWP No. 7696 of 2015 is binding precedent applicable to the facts of this case or not
(b) Whether the judgments of four different High Courts and of Division Bench of this Tribunal precisely on the very same issue under consideration, under Central Excise Act, 1944 are applicable to the case; or
(c) Whether this Tribunal is having inherent powers to grant interim protection of such condition of mandatory pre-deposit for hearing the appeals, in the light of the decision of Honble High Court of Punjab & Haryana under Punjab VAT Act, in the case of Punjab State Power Corporation (supra) consequently, the applicants are entitled for waiver of pre-deposit of impugned demands, during the pendency of the appeals.
(Pronounced in the court on 20.06.2017) Devender Singh Ashok Jindal Member (Technical) Member (Judicial) The following points of difference arising between two learned Members of the original bench stands referred to me for resolving the dispute:-
(a) Whether interim order passed by the Honble High Court of Punjab & Haryana in the case of Super Threading Pvt. Ltd., in CWP No 7696 of 2015 is a binding a precedent applicable to the facts of this case or not;
(b) Whether the judgements of four different High Courts and of Division Bench of this Tribunal precisely on the very same issue under consideration, under Central Excise Act, 1994 are applicable to the case; or
(c) Whether this Tribunal is having inherent powers to grant interim protection of such condition of mandatory pre-deposit for hearing the appeals, in the light of the decision of the Honble High Court of Punjab & Haryana under Punjab VAT Act, in the case of Punjab State Power Corporation (supra) consequently, the applicants are entitled for waiver of pre-deposit of impugned demands, during the pendency of the appeals.
2. The short point required to be decided in the present case is as to whether the appellant is at liberty to file the stay petitions after 06.08.2014 when the new provisions of section 35F were introduced in the statute book and as to whether the Tribunal is within its jurisdiction to decide upon the said stay petitions. Further, as to whether the Tribunal has the inherent powers to grant interim protection to the appellant from the condition of pre-deposits, as required in terms of the amended provisions of section 35F.
3. Before I proceed to decide the issues, it would be worth reproducing the amended provisions of section 35F after 06.08.2014:-
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 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 FUTHER 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 purpose 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.]
4. There is no dispute about the fact that the appeals stand filed by the appellant after 06.08.2014. Prior to the introduction of amended provisions of the said section, section 35F granted jurisdiction to the Tribunal to decide the stay petitions and to dispense with the conditions of pre-deposit in deserving cases. Admittedly, the dispute involved in the present appeals stand decided by the precedent order of the Tribunal and in exercise of its jurisdiction, in terms of section 35F as that existed prior to 06.08.2014, the Tribunal would have granted unconditional stay and would have dispensed from pre-deposit, as the issue was decided in favour of the assessee by the earlier decision of the Tribunal. However, it is seen that the situation has now changed and amended section 35F mandates the Tribunal not to entertain any appeal unless the deposits required therein standmade by the appellant. As is noted, the expression used in section 35F is that the Tribunal 'shall' not entertain any appeal unless the appellant has deposited the directed amounts as contained in sub- clause (i) or sub-clauses (ii) of the said section. The expression 'shall' in a common parlance is a term which has always a compulsory meaning and its ordinary import is obligatory. The courts have held that such a connotation need not be given in each and every case and the provisions can be interpreted as directory, depending upon the purpose which the legislature intend to achieve (ref: M/s. Rubber House Vs Excelsion Needle Ind ustries Pvt. Ltd. - AIR 1989 S. C.). The use of the expression shall be amendment proposed in section 35F indicate the legislative intent and mandate. The same were introduced with a clear intent to take away the jurisdiction of the Tribunal to entertain the stay petitions and to decide upon the same. The use of the said word raises a presumption that the provision is mandatory and this presumption does not stand displayed by anything else in the Act or the Rules. The said amended section leaves no scope for the Tribunal to entertain any appeal, without pre-deposit, even in deserving cases. The said section makes no exception for dispensation from pre-deposit in a given circumstance. As such, though I feel that the appellant should be granted dispensation from the pre-deposit but in the absence of any powers or jurisdiction to do so, I feel handicapped.
5. On going through the orders by both the learned Members, I note that learned Member (Judicial) has relied upon the interim order of Punjab & Haryana High Court in the case of Super Treading India Pvt. Ltd. Vs Union of India and learned Member (Technical) referred to the Hon'ble Supreme Court decision in the case of Amresh Tiwari Vs La/ta Prasad Dubey & Another (2000) 4 SCC 440 clarifying that such interim orders cannot be held to be of any binding precedent inasmuch as, the law stands clarified by the Hon'ble Supreme Court, I agree with the learned Member (Technical) that such interim orders will not carry any precedent value.
6. Further, the learned Member (Judicial) has relied upon the Punjab and Haryana decision in the case of Punjab State Power Corporation. As rightly pointed out by learned Member (Technical), the said decision was in the case of Punjab VAT Act and as such is not directly applicable to the provisions of section 35F of the Central Excise Act and as such no support can be drawn from the said decision. As regards the inherent powers, I am of the view that such inherent powers can be adopted and exercised where there is void in law and there are no provisions relating to the situation before the court. When there is clear mandate of law and legislation requires a particular thing to be done in a particular manner, such mandate of law is required to be followed and inherent powers cannot be adopted to controvert the said mandate. Reliance can be made to the Hon'ble Supreme Court decision in the case of Competent Authority Vs Barangorng Jute Factory and Others - 2005 (13) SCC 477 has held as under:
"It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning."
Further, in the case of State of Jharkhand and Others Vs Ambey Cement and Another's - 2005 (1) SCC 368 = 2004 (178) E.L. T.55 sec, Para 26 of the judgment, the court held as under:-
"It is the cardinal rule of the interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way."
7. Apart from the fact that such adoption of inherent powers cannot be appreciated when there is a clear provision of law requiring the Tribunal to do a particular thing in a particular manner, I am afraid that the same would also open plethora of situations where the Tribunal would grant such favours by holding, prima facie, merits of the case in favour of the appellant, thus leading to the pre-amendment situation. The legislative intent in amending provisions of section 35F, requiring the assessee to deposit a particular percentage of the demand confirmed against them, would get defeated if such dispensation with the pre-deposits is allowed, even in deserving cases.
7.1 As such, I agree with the learned Member (Technical) that the appellant is required to be put to the terms of deposits, in terms of the amended provisions of section 35F. In fact, in the absence of any provisions on filing of stay petition, such stay petitions filed by the assessee are infructuous, thus requiring no orders on the same.
8. Before I conclude, it may be observed that in my personal views, the amended provisions of section 35F are rigid and inflexible and do not grant grant any scope of exigencies. In a situation, like the present case, where an assessee has already procured a successful order from the Tribunal on the disputed issue, the condition of pre-deposit, in terms of the provisions of amended section 35F would be an unjustified condition, apart from the fact that the same would lead to multiplication of litigants. The appellant is likely to succeed in the present appeals also, in view of the earlier order of the Tribunal, thus leading to further litigation for refund of the amounts so deposited. It is a matter of experience that to save limitation Revenue keeps on issuing repeated show-cause notices on the same issue. The first notice, after due adjudication reaches the higher forum and if the dispute gets settled in favour of the assessee, the adjudications in the pipe-line would also be required to set aside. In such a situation, directing the assessee to make pre-deposits would neither be just nor fair inasmuch as after pre-deposit, his appeals are more than likely to succeed; thus compelling him to approach the Revenue for refunds. This only leads to additional paper work as also avoidable litigation.
On the other hand, in a given case, which may not be favourable to the assessee, the assessee gets away by depositing only 100/o of the confirmed demand, even though, prima facie, merits of the case may require him to deposit much more. As such, viewed from both the sides, the amended provisions of section 35F, without any scope of interference by the Tribunal do not do justice either to the litigants or to the Revenue.
8.1 However, the Tribunal being a creature of the Act cannot go beyond the provisions of the Act and is duty bound to follow the provisions of section 35F, as they stand in the statute book after amendment. As such, I agree with the learned Member (Technical) that the appellant is required to be put to the conditions of pre-deposit of 100/o of the duty amount in terms of section 35F of the Central Excise Act. The papers may be sent to the original bench for recording majority order.
ORDER No.60566-60571/2017 In view of the majority decision, the applicant is directed to make mandatory pre-deposit in terms of Section 35F of Central Excise Act, 1944 within a period of four weeks and to report compliance on 08.01.2018.
(Order pronounced in the court on 04.12.2017)
Devender Singh Ashok Jindal
Member (Technical) Member(Judicial)
KL
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