2016 (9) TMI 76

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....ore, C.A. for the Appellant Shri Rajeev Gupta, Commr.(AR), K.Chaudhary, Supdt.(AR), A.Roy, Supdt.(AR), S.S.Chattopadhyay, Supdt.(AR) & S.Mukherjee, Supdt.(AR) for the Revenue ORDER Per Shri H. K. Thakur Defect Memos were issued to the Appellants by CESTAT, Registry, Kolkata to deposit remaining 7.5% of the duty as required under Section 35F(iii) of the Central Excise Act, 1944 and Section 129E of the Customs Act, 1962, in addition to 2.5% deposited by the Appellants. 2. S/Shri Ravi Raghavan, (Advocate), Miss Satabdi Chatterjee, (Advocate), Sanjay Bhowmik, (Advocate), Vikram Khaitan, (C.A.) and Navin More, (C.A.) appeared on behalf of the respective Appellants. Learned Advocate Shri Ravi Raghavan leading the arguments for the ....

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....ty. That in Kolkata Bench also, except the present Appellants, all other Appellants are making deposit of additional 10% deposit while appeal against first appellate authority under Section 35F of the Central Excise Act, 1944 and Section 129E of the Customs Act, 1962. Shri K.Choudhary, Supdt.(AR) made the Bench go through para 8.2 of CBEC Circular dated 16.09.2014 to submit that Order of Commissioner(Appeals) includes the following in its preamble:- "An Appeal against this order shall lie before the Tribunal on payment of 10% of the duty demanded where duty or duty and penalty are in dispute, or penalty, where penalty alone is in dispute." 4. Heard both sides and perused the case records. The issue involved in the present procee....

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....t. 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 :" 4.2 It is observed from the case records that neither Section 35F(iii) of the Central Excise Act, 1944 nor CBEC Circular dated 16.09.2014 specifically mention whether 10% deposit required before Appeal is entertained should be inclusive or exclusive of 7.5% deposit made before the first appellate authority. It is a well known fact that success rate of departmental cases before the appellate authorities is very poor. That is the reason that percentage of deposit required to be made before the first appellate authorities is as low as 7.5% of the disputed amounts or pe....