2019 (9) TMI 1104

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....the facts and circumstances of the present case." 2. We have heard counsel appearing for the petitioner who has submitted that this appellant has preferred an appeal before CESTAT, Delhi against an order dated 23rd February, 2018 under Section 35F of the Central Excise Act, 1944 in original passed by Commissioner, Central Excise Goods and Services Tax, Dehradun. 7.5% of the duty demanded is to be deposited by this petitioner which may be waived by this Court. This pre-deposit amount may be waived by this Court and the appeal may be ordered to be heard by CESTAT on merits. 3. Having heard counsel for the petitioner and counsel for the respondent and looking to the amendment which is made effective from 6th August, 2014, the Statute has already waived 92.5% of the duty demanded even in cases where there is no hardship. Thus, we cannot be more lenient than law itself. The highest charitable person is the law and hence, we see no reason to further waive the pre-deposit as required under the law. 4. This issue is no longer res integra, having been conclusively decided by a Division Bench of this Court in Anjani Technoplast Ltd. v. Commissioner of Customs, 2015 (326) ELT 472 (Del.). ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... periods of dispute - and the date of issuance of show cause notice - were anterior to the amendment of the said provisions, thus (in paras 11 and 12 of the judgment): "11. The decision of the learned Single Judge of the Madras High Court in Fifth Avenue Sourcing (P) Ltd. V. Commissioner of Service Tax (supra) also proceeds on the basis that the date of issuance of an SCN by itself creates a vested right in the noticee as regards the appeal that may be filed against the adjudication order pursuant to such SCN. As already observed, it is possible that pursuant to an SCN, the adjudication proceedings may be dropped if the adjudication authority comes to the conclusion that no demand requires to be created. Consequently, the relevant date if at all would be the date of creation of the demand which does not get crystallised till the adjudication order confirming the demand is passed. In any event, as far as the amended Section 129E of the Act is concerned, its wording is unambiguous. It opens with the words "The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal.... unless the appellant deposits the percentage of the demanded duty as stipulated....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

...., but, if the left out Director prefers appeal on or after 6th August, 2014, looking to the second proviso to substituted Section 35F, the newly substituted Section 35F shall be applicable, to his appeal and such an appellant, shall have to deposit 7.5% or 10% of the duty demanded or penalty levied, as the case may be. The fact as to whether it will be beneficial to the assessee or not, does not merit any consideration as individual benefit is not to be appreciated at all. Even if anybody has preferred appeal prior to 6th August, 2014 and his waiver application has been dismissed by the appellate authority which is confirmed up to the Hon'ble Supreme Court and he was compelled to deposit 100% of the duty demanded, then also, if the left out Director or anyone has preferred appeal on or after 6th August, 2014, he will have to deposit only 7.5% or 10% of the duty demanded or penalty levied." 10. In view of the above decisions, it can no longer lie in the mouth of any assessee, filing an appeal, before the CESTAT, after 6th August, 2014, to contend that, merely because the period of dispute, in its case, or the date when show cause notice was issued to it, was prior, in point of time....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....l. xxx      xxx      xxx 41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non- speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugne....