2024 (6) TMI 185

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....al Excise Act, 1944 (hereinafter referred to as the 'Act' for short), which is applicable to Service Tax also. Learned counsel for the petitioner places reliance on the judgment of a Coordinate Benches in Madhya Pradesh Power Transmission Company Limited vs. Customs Excise and Service Tax Appellate Tribunal in W.P. No.9371/2008, decided on 20.10.2010 and also the judgment of Division Bench in Mukesh Kalway v. Customs Excise and Service Tax Appellate Tribunal in W.P. No.18742/2015 dated 14.07.2016, to submit that in both the cases cited above, Hon'ble Coordinate Benches have directed the respondent no.1 to hear and decide the appeal pending before the respondent no.1, without insisting for pre-deposit of the tax for hearing of th....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ant. Where an application for waiver of pre-deposit is filed, the appellate authority shall try to dispose off the application within a period of 30 days from the date of filing." Thus, placing reliance on the aforesaid, it is submitted that the petitioner be given a liberty to approach the competent authority to move an application before CESTAT to waive the requirement of pre-deposit. It appears from the provisions which exist as on today that Section 35F of the Act, prior to amendment, which was carried out vide Act 25 of 2014, Section 105 which came into effect from 06.08.2014 reads as under:- "[35F. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal.-The Tribunal or the Commissioner (Appe....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... (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.]" Prior to the aforesaid amendment dated 06.08.2014, earlier Section 35F of the Act was amended by Act 22 of 1995 (w.e.f. 26.05.1995) and thereafter, by Act 14 of 2001, Section 130 (w.e.f. 11.05.2001) and by Act 22 of 2007, Section 131 (w.e.f. 11.05.2007). Section 35F of the Act, before substitution by Act 25 of 2014, stood as under:- "35F. Deposit, pending appeal of duty demanded or penalty levied.- Where in any appeal under this Chapter, the decision or order appealed against relates....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... w.e.f. 06.08.2014, but to the provisions which were holding field earlier. Therefore, neither the aforesaid book by Sunil B. Gabhawalla nor the judgments cited by Shri Abhishek Oswal will be of any assistance to him. Therefore, since the provision contained in Section 35F as is effective from 06.08.2014, makes only two exceptions namely that the extent of pre-deposit shall not exceed rupees ten crores and 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, no third exception can be carved out on the basis of repealed provisions of the said Act, therefore, the request of the petitioner to waive requiremen....