2015 (7) TMI 313

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....8.2014. 2. The appellant has contended that as per the Kerala High Court judgment in the case of Muthoot Finance Ltd. Vs. Union of India & Ors. - 2015 (3) TMI 634 (Ker.-HC) and in the case of M/s A.M. Motors Vs. Union of India and Commissioner of Central Excise, Kozhikode - 2015 (6) TMI-162 -Kerala-High Court, mandatory pre-deposit is not required because lis in question commenced prior to the introduction of the amended Section 35F ibid and therefore the appeal should be dealt with in terms of the provisions of Section 35F as existed prior to 6.8.2014 and that the same view has been held by Punjab & Haryana High Court in the case of M/s Super Threading (India) Pvt. ltd. and Another Vs. Union of India and Others - CWP-7696-2015. 3. The ld....

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....e Hon'ble Andhra Pradesh High Court had taken a prima facie view that "inasmuch as the lis in question had commenced prior to introduction of the amendment to the Finance Act, 1994 with effect from August 2014, the petitioner's right of appeal as per the erstwhile provisions of law would not be effected by the provisions introduced by amendment of 2014". The Hon'ble Kerala High Court observed that the said view seems to be consistent with the settled law. Having thus observed and in that view of the matter the Hon'ble Kerala High Court found that petitioner in whose case also the lis commenced in 2013 would not be required to deposit the amount of 7.5% as required pursuant to the 2014 amendment and in that respect, he would ....

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....re to deposit the amounts as per the amended Section 35F of the Central Excise Act, 1944 which came into effect on 6.8.2014". Thus the said order of the Punjab & Haryana High Court was issued taking note of the order in the case of Muthoot Finance (supra) and does not really lay down any ratio. It is settled law that it is the ratio of a judgement that constitutes a precedent. On the other hand, the Rajasthan High Court in the Writ Petition of Paramount Security (supra) considering the effect of the substituted provisions of Section 35F with effect from 6.8.2014 has recorded an opinion that "the effect of the amendment cannot be restricted only for those appeals which are filed after 6.8.2014. Such a restriction will be violative of Articl....

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.... 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 Rs. 10 crores. Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate autho....