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Allahabad High Court · body

2015 DIGILAW 1223 (ALL)

JAISWAL INDUSTRIES v. COMMISSIONER OF CENTRAL EXCISE

2015-05-14

ARUN TANDON, SURYA PRAKASH KESARWANI

body2015
JUDGMENT By the Court.—Heard Sri A.P. Mathur, learned counsel for the appellant and Sri Ashok Singh, learned counsel for the department. 2. This excise appeal under Section 35G of the Central Excise Act, 1944 is directed against the order of the Customs, Excise & Service Tax Appellate Tribunal, dated 19th January, 2015, whereby the Tribunal has required the assesse to deposit a sum of Rs. 25.00 Lakhs as pre-deposit under the provisions of Section 35F within a period of eight weeks so as to make the appeal competent. The assessee was required to report compliance by 30th March, 2014 which was subsequently extended till 30th March, 2015. It is explained that in the certified copy of the order of Tribunal the date 30th March, 2015 is wrongly mentioned as 30th March, 2014. 3. It is the case of the petitioner that Section 35F was amended vide Act No. 2 of 2015 whereby deposit of 7.5% of the disputed amount before the Tribunal has been provided as the pre-deposit for making the appeal competent. 4. Reference is also made to the judgment of Rajasthan High Court in the Case of Rajasthan State Industrial Development & Investment Corporation Limited v. Union of India and others, Appeal No. 1 of 2015 decided on 12.2.2015 wherein a Division Bench has opined that in view of the amended Section 35F of U.P. Act No. 2 of 2014, the benefit of deposit of 7.5 only must be extended to the appellant in appeal which had been filed prior to the enforcement of the amended Section 35F i.e. 6th August, 2014. Any other direction will be violative of Article 14 of the Constitution of India. 5. We find it difficult to agree with the preposition as laid down in the said judgment of the Rajasthan High Court in the case of Rajasthan State Industrial Development & Investment Corporation Limited (supra). 6. Section 35F has been amended vide Finance Act No. 2 of 2014. It requires deposit of 7.5% of desputed amount under Clause 1 and 2 and 10% of disputed amount under Clause 3 of Section 35F. A proviso has also been added. Amended Section 35F reads as follows : “35F. 6. Section 35F has been amended vide Finance Act No. 2 of 2014. It requires deposit of 7.5% of desputed amount under Clause 1 and 2 and 10% of disputed amount under Clause 3 of Section 35F. A proviso has also been added. Amended Section 35F 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 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.” 7. 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.” 7. From a simple reading of the said Section 35F, which is not under challenge, it cannot be disputed that the provision of Section 35F as amended vide Finance Act 2 of 2014 w.e.f 6th August, 2014 will have no application on the appeals which were filed and were pending before the Tribunal prior to the said date. 8. It is settled law that if the language of the statute is simple and admits of only one meaning than no rule of interpretation is to be applied and the simple meaning has to be given effect to. 9. The Tribunal has recorded that between 6th May, 2011 to 18th October, 2011 the clearance of pipes to the tune of 3,55,825 Kg. had been made, valued at Rs. 2.49 Crores and the assessee had not obtained registration from the Central Excise Department nor had paid the excise duty on the said transactions on the plea that the unit of the assessee is within the SSI limit. 10. We, therefore, find no illegality in the order of the Tribunal asking the assessee to deposit Rs. 25.00 Lakhs. 11. After the said order was dictated by the Court, counsel for the petitioner comes up with a prayer that since the time for deposit of the money is to expire on 30.5.2015, some reasonable extension may be provided by this Coiurt. 12. Let the money be deposited on or before 30.6.2015. If this is done it would be treated as sufficient compliance of the order of the Tribunal. 13. The present appealis accordingly dismissed subject to the observation made. ———————