TaxTMI 
TaxTMI 
2023 (7) TMI 544
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....1944, which is a precondition for entertaining any appeal. Issue being preliminary in nature and concerned with maintainability of the appeal, we took up hearing of the preliminary issue of maintainability at the first instance. 2. Bereft of unnecessary detail, what is required to be mentioned here is that there are 4 appeals which are tagged together for analogues hearing as the issue involved in all those 4 appeals are common. Duty amount involved in these 4 appeals is between Rs.207.68 and Rs.2205.82 crores. Admittedly maximum amount of pre-deposit i.e. Rs.10 crores is deposited by the Appellant for each appeal but through reversal of Input Tax Credit (ITC) via form DRC-03 introduced under the GST Act. Claim of the Appellant is that CENVAT Credits, available to its credit as on 30.06.2017 in all 3 sister companies who filed these 4 appeals, was between Rs.260.94 and Rs.463.65 crores that was credited to GST TRAN-1 and converted to input tax credit (ITC) for which no irregularity was committed by the Appellants in debiting DRC-03 towards pre-deposit of two appeals. In respect of other 2 appeals bearing appeal Nos. ST/87095/2022 and ST/87687/2022 ITC was reversed during the cours....
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.... clearly indicate that apart from sub-Rule 4 of Rule 11, it is the Tribunal, which as per Section 129C(1) of the Customs Act is equated with Benches to deal with power and function of the Appellate Tribunal, is to decide about admissibility or rejection of a memorandum of appeal and, therefore, the officer of the Tribunal namely the Registrar and Assistant Registrar, as per sub-Rule 4 can only return the memorandum of appeal only but concerning its acceptance or rejection, a judicial order is required to be passed by the Bench and not through any administrative instruction. Further, when CESTAT (Procedure) Rules, 1982 was brought into force, the concept of pre-deposit of certain percentage was not in existence for which no direct reference exist in the Rule but the wording in Rule 11(1) "or is in any other way defective together with, documents referred in sub Rule (2) could be read together to mean proof of pre-deposit. Therefore, admission and registration of appeal with an appeal number would not be an impediment to decide on the merit of its fitness for hearing or entertaining the appeal. 4. It is pertinent to record here the objection raised by the Authorised Representative M....
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.... argued or dealt by this Tribunal in its Bench at Allahabad, for which no precedent value can be attached thereto. He had also referred to Repeal and Saving Clause-174 of the CGST Act to justify that the mode of pre-deposit was proper since the said Section 174 clearly stipulates that Commencement of CGST Act would not affect any right, privilege, obligation, or liability acquired, accrued or incurred under the Amended Act or Repealed Act and institution of any appeal under the Central Excise Act or the Finance Act, 1994 after the commencement of GST Act would continue to be Governed under the old Act as if this GST Act has not come into force and the old Acts namely Central Excise Act, 1944 or the Finance Act, 1994 had not been amended or repealed. He further pointed out that basing on the judgment of Hon'ble High Court of Bombay in Sodexo India Services Pvt. Ltd. cited supra, relied upon Circular has been issued but in the said judgment relief was granted to the Appellant who made pre-deposit through credit ledger (DRC-03) by expressly setting aside the order of rejection passed by the Commissioner (Appeals) and directing him to hear the appeal on merit, for which he pleads f....
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....n the ground that the same is taken out from the cash balance or credit balance (which was accrued through payment of cash only) and it is questioned so seriously. 8. In the instant case what is observed is that in two appeals pre-deposits were adjusted against payment made during investigation and in two other appeals it is made from the credit ledger, to which Appellants surplus CENVAT Credit were transited into. Now going by the close reading of the Section 174 sub-Section 1(f) repeal of Central Excise Act or amendment of Finance Act, 1994 would not affect any proceeding relating to an appeal instituted after the commencement of GST Act and a deeming friction is brought into service by stating that to continue such proceedings under the Amended Act (Finance Act) or Repealed Act (Central Excise Act), it would be taken as if the CGST Act had not come into force and such amendment or repeal had not taken place. This being the dictate of the Statute, CENVAT Credit that was available with Appellant on 01.07.2017 would be treated to have been in existence during filing of the appeal as if no transition to TRAN-1 had taken place. It is needless to mention here that Appellants had huge....