Appeal to CESTAT - Pre-deposit mandatory even for appeals against orders issued prior to 06.08.2014 - CESTAT
THE CESTAT in a Circular has clarified certain issues regarding pre-deposit.
The Finance Act 2014 amended provisions of the three statutes namely Customs Act 1962, Central Excise Act, 1944 and Finance Act 1994, by which the mandatory deposit of 7.5%/10%, as the case may be, has to be made for filing an appeal before the CESTAT.
The above provisions came into force with effect from 06.08.2014.
However, some of the appellants/consultants/Counsels while presenting appeals are expressing reluctance in complying with the condition of mandatory deposit stipulated under the Act as amended. Some of them have contended that as the Show Cause Notice was issued and demand confirmed prior to 06.08.2014, the amended provisions are not applicable to their case.
Some of them have relied upon judgments of various judicial forums to claim exemption from the mandatory deposit while filing appeal.
Tribunal clarifies that no such exemption has been contemplated either in the amended provision of the Act statutes, or even in the clarificatory circular [, Dated: September 16, 2014] issued by the CBEC on the subject.
In view of above, Registrar, CESTAT has directed the DRs/ ARs/TOs of all Benches that if no evidence in support of mandatory deposit is produced while filing appeal, such appeals, after providing three opportunities/reminders, be numbered and listed on Fridays before the Court presided by the Senior Member for appropriate orders.
The Tribunal has extracted Section 35F of the Central Excise Act as presented in the Finance Bill 2014, but not as contained in the Finance Act 2014. The mention in serial (iii) below of a clause (b0 is apparently a typographical error in the CESTAT Circular.)
As extracted by the CESTAT Registrar | The Statute as it stands today |
|---|---|
The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal | |
i) under sub-section (1) of section 35, unless the appellant has deposited seven and half per cent of the duty demanded or penalty imposed or both , in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the Commissioner of Central Excise; | (i) 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 than the Commissioner of Central Excise; |
ii) against the decision or order referred to in clause (a) of sub- section (1) of section 35B, unless the appellant has deposited seven and a half percent of the duty demanded or penalty imposed or both, in pursuance of the decision or order appealed against; | (ii) against the decision or order referred to in clause (a) of sub-section (1) of section 35B, 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 the decision or order appealed against; |
iii) against the decision or order referred to in clause (bO of Sub- section (1) of section 35B, unless the appellant has deposited ten percent of the duty demanded or penalty imposed or both, in pursuance of the decision or order appealed against: | (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: |
So, now this is a dispute before the CESTAT, which can go in further appeals.
CESTAT Circular F.No. 15/CESTAT/General/2013-2014, Dated: October 14 2014