2015 (10) TMI 111

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....ointing out that the appeal had been filed on 6-8-2014 and therefore the appellant should have deposited 7.5% of the duty demanded and there was no need for stay application. Since the order had already been pronounced in the open court, an interim order was passed on 11-11-2014, the order was recalled and matter was listed for hearing on 25-11-2014. 2. Today when the matter was called, the learned CA for the appellant submitted that the requirement of deposit of 7.5% of demand to hear the appeal is not applicable to the cases where proceedings had started much before. He submitted that in the case of Prestige Garden Constructions Pvt. Ltd. the show-cause notice was issued on 23-10-2013 and in the case of Exora Business Parks Pvt. L....

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....tain 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 demanded or penalty imposed or both, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the 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 demanded or penalty imposed or both, in pursuance of the decision or order appealed against; (iii) ....

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....xpressly provided, the decision of the Hon'ble Supreme Court relied upon by the learned CA is not applicable. As regards the reliance of the learned CA on the decision of the Hon'ble Supreme Court in the case of Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh [1983 (13) E.L.T. 1277 (S.C.)], we have to observe that unless the provisions under consideration are pari materia, the decision cannot be applied. We have already considered that there is an extra intendment to apply this provision in respect of all the appeals that will be filed on or after 6-8-2014 in the statute itself. When the statutory intention is clear and unambiguous, the question of consideration of the enacted provisions and not to follow the same does not ar....