TaxTMI 
TaxTMI 
TaxTMI 
2019 (8) TMI 1809
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...., Director General of GST Intelligence. 2. We have heard Mr. L. Badri Narayanan, learned counsel appearing for the petitioner and Mr Satish Aggarwal, learned counsel for the respondent, at length, and examined the provisions of the Central Excise Act, 1944 (hereinafter referred to as "the Act"), especially Section 35F of the Act. 3. Section 35F of the Act, as it stood prior to 6th August, 2014, required an assessee, appealing to the CESTAT, to pre-deposit the entire amount of duty, penalty and interest, confirmed against it, by the lower adjudicating/appellate authority, as a condition for entertainment of its appeal, while retaining power, with the CESTAT, to, in appropriate cases, where undue hardship was shown to exist, waive, either in whole or in part, the said requirement of pre-deposit. Section 35F of the Act, as it stood prior to 6th August, 2014, read thus: "35F. Deposit, pending appeal, of duty demanded or penalty levied. -- Where in any appeal under this Chapter, the decision or order appealed 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 desiro....
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....ainst; (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 rupees ten crores: Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No.2) Act, 2014. Explanation.- For the purposes of this section "duty demanded" shall include, "(i) amount determined under section 11D; (ii) amount of erroneous Cenvat credit taken; (iii) amount payable under rule 6 of the Cenvat Credit Rules, 2001 or the Cenvat Credit Rules, 2002 or the Cenvat Credit Rules, 2004." 5. The case sought to be set up, by the petitioner, in the writ petition - which Mr. L. Badri Narayanan did not seriously canvass during argument - is that, as the amendment (by way of substitution) of Section 35F of the Act took place after the ....
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....amended Section 35F of the CE Act......." (Emphasis supplied) 12. Taking stock of similar pronouncements in other cases, this Court proceeded to hold, on the question of applicability of the amended provisions of Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962, to cases in which the 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 th....
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....stitution of India much less of Article 19(1)(g) of the Constitution of India. (xix) Thus, even if the show-cause notice has been issued prior to 6th August, 2014 or even if the Order-in-Original is passed prior to 6th August, 2014 or even if, the company and few of its Directors have preferred appeals prior to 6th August, 2014, 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 ....
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....n (supra), Shubh Impex (supra) and Manoj Kumar Jha (supra), reveal that the attention of this Court had, in the said decisions, not been invited to its earlier judgment in Anjani Technoplast (supra) which set out, in clear and unambiguous terms, that every appeal, before the CESTAT, filed after the amendment of Section 35F/129E would be maintainable only if mandatory pre-deposit were made. 24. The Civil Appeal, preferred against the said decision, also stood dismissed by the Supreme Court, as reported in Anjani Technoplast Ltd. v, CCE, 2017 (348) E.L.T A132 (SC). 25. Dismissal of a Civil Appeal, it is trite, results in merger of the judgment of the High Court, with the order passed by the Supreme Court and, thereby, elevates the judgment of the High Court to the status of the pronouncement of the Supreme Court. In this context, one may refer to the following passages from Kunhayamed v. State of Kerala, (2000) 6 SCC 359. "32. It may be that in spite of having granted leave to appeal, the Court may dismiss the appeal on such grounds as may have provided foundation for refusing the grant at the earlier stage. But that will be a dismissal of appeal. The decision of this Court wou....
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....urt, there could be no question of this Court, in a subsequent case, adopting a view that an appeal, preferred before the CESTAT after 6th August, 2014, could be maintained without pre-deposit of the entire amount of duty confirmed against the concerned appellant by the authority below. 28. Equally, it is trite that no court can issue a direction to any authority, to act in violation of the law. A reading of Section 35F of the Central Excise Act reveals, by the usage of the peremptory words "shall not" therein, that there is an absolute bar on the CESTAT entertaining any appeal, under Section 35 of the said Act, unless the appellant has deposited 7.5 % of the duty confirmed against it by the authority below. 29. The two provisos in Section 35F relax the rigour of this command only in two respects, the first being that the amount to be deposited would not exceed Rs. 10 crores, and the second being that the requirement of pre-deposit would not apply to stay applications or appeals pending before any authority before the commencement of the Finance (No.2) Act, 2014, i.e. before 6th August, 2014. 30. Allowing the CESTAT to entertain an appeal, preferred by an assessee after 6th Au....