2018 (11) TMI 569 - HC - Central Excise

Court sets aside order for non-compliance with pre-deposit rules, directs deposit to proceed with appeal

BINAY OPTO ELECTRONICS PVT. LTD. Versus C.C.E. & S.T. (APPEALS-I), KOLKATA

The Court set aside the order refusing to entertain the appeal due to non-compliance with the pre-deposit requirement under Section 35F of the Central ... Maintainability of appeal - failure to make pre-deposit - Held that:- In the circumstances, in view of the subsequent amendment to Section 35F of the Act of 1944 requiring a pre-deposit of 7½% of the amount of duty claimed, it would be appropriate to direct the petitioners to deposit 10% of the amount claimed against it, with the appropriate authorities within four weeks from date - application disposed off. Issues:1. Appeal against order refusing to entertain due to failure of pre-deposit.2. Interpretation of Section 35F of the Central Excise Act, 1944.3. Validity of bank guarantee for pre-deposit.4. Impact of subsequent amendment to Section 35F on appeal process.5. Direction for deposit amount and withdrawal of bank guarantee.Analysis:1. The petitioners challenged an order by the appellate authority for not entertaining their appeal due to failure to make a pre-deposit as directed.2. The Senior Advocate for the petitioners referred to Section 35F of the Central Excise Act, 1944, which requires a deposit equivalent to 7½% of the tax in dispute for appeal consideration.3. The petitioners secured &8377; 32 lakh through a bank guarantee, valid until November 30, 2018, to meet the pre-deposit requirement.4. The respondents argued that the amendment to Section 35F was not in force when the impugned order was passed, seeking no interference.5. The Court noted that an amount exceeding &8377; 64 lakh was demanded from the petitioners, and despite the later introduction of amendments to Section 35F allowing appeal admission upon a 7½% deposit, the appeal was initially refused due to non-compliance.6. Concerns were raised regarding the reliability of bank guarantees and the Revenue's preference against them, leading to a directive for the petitioners to deposit 10% of the claimed amount within four weeks, allowing the appeal to be heard and considered.7. The impugned order dismissing the appeal due to non-deposit was set aside, permitting the withdrawal of the bank guarantee upon compliance or encashment by the Registrar if the directed deposit was not made.8. The petition was disposed of with no order as to costs, emphasizing compliance with the directed deposit and notification to the Registrar within six weeks.This detailed analysis covers the issues raised in the judgment, including the interpretation of relevant legal provisions and the directives provided by the Court regarding the deposit amount and the use of bank guarantees in the appeal process.