2017 (9) TMI 24

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....the order in original dated 30.3.2012, the appellant preferred an appeal which was decided by the order in appeal dated 4.10.2013. The aforesaid order in appeal was impugned by the appellant before the Tribunal by filing an appeal on 9.1.2014. The appeal was filed by the appellant without depositing any part of the disputed amount of the duty. The appellant in the said appeal moved an application for stay/waiver of the pre-deposit of the disputed amount of the duty. The said application has been rejected by the impugned order. The argument of Sri Paliwal is that the provision of appeal namely, Section 35F of the Central Excise Act, 1944 (for short the "Act") was amended by Finance Act No. 2 of 2014 with effect from 6.8.2014. It pro....

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....against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue....

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....s drastically amended by Act No.2 of 2014 enforced with effect from 6.8.2014 and it provides as under :- "SECTION 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- (1) 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 that the [Principal Commissioner of Central Excise or Commissioner of Central Excise]; (ii) against the decision or order referr....

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....shall not apply to the stay application and appeal pending before any Appellate Authority prior to the commencement of the Finance Act No.2 of 2014 i.e. 6.8.2014. The second proviso to Section 35F of the Act, as amended, is very clear and it specifically excludes the appeals already filed and pending before the Appellate Authority from the applicability of the amended provisions of Section 35F of the Act. In view of the second proviso to the Section 35F of the Act would not apply to appeals which were filed prior to the enforcement of the amending Act and were pending on the date of its enforcement. A Division Bench of the Rajasthan High Court in the case of Rajasthan State Industrial Development and Investment Corporation Ltd. Vs.....

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.... the above decision of Allahabad High Court, we are left with no option but to follow the same specially when the language of Section 35F of the Act as amended is clear & unambiguous and leaves no room but to hold that the amended provisions would not apply to the appeals pending before the enforcement of the aforesaid amendment. In the case at hand, as stated earlier, there is no dispute to the fact that the appeal before the Tribunal was filed on 9.1.2014 much before Section 35F of the Act was amended and enforced. Therefore, the appeal filed by the appellant is to be governed by the un-amended provisions of Section 35F of the Act, which provides for the deposit of the entire disputed amount. Since the petitioner has not deposited the ....