Can Tribunal Order pre-deposit under earlier version of section 35F of Central Excise Act 1944, in appeal filed before 6th August 2014?
AGAINST Orders in Original dated 30th August 2013 and 9th October 2013 passed by the Commissioner, Central Excise, the assessee filed appeals before the CESTAT with applications for waiver of pre-deposit. While the appeal and applications were pending, Section 35F of the CE Act, as it stood then (Where Tribunal could grant waiver of pre-deposit subject to conditions imposed), was substituted with effect from 6th August 2014 by the present Section 35F of the CE Act which mandates pre-deposit of seven and a half percent of the duty.
By an order dated 22nd December 2015 , the CESTAT ordered pre-deposit of an amount of Rs. 3 Crores.
The assessee is before the High Court with the plea that since there is no saving clause qua the provision as it stood prior to the amendment, there is as of date no provision in the CE Act which mandates pre-deposit in appeals pending before the CESTAT prior to 6th August 2014.
The High Court found prima facie in the absence of any saving clause, the Appellant has a statable case on the strength of the decision of the Constitution Bench of the Supreme Court in Kolhapur Canesugar Works Ltd. Vs. UOI - 2002-TIOL-188-SC-CX-CB.
So, the Court has admitted the appeal and framed the following question of law for determination:
Whether on the facts and in the circumstances of the case, the CESTAT could direct the Appellant to make a pre-deposit under the earlier version of section 35F of Central Excise Act 1944, in the appeal filed before 6th August 2014?
The Court stayed the impugned order dated 22nd December 2015 passed by the CESTAT and directed that the CESTAT will proceed with hearing of the appeals without insisting on a pre-deposit by the Appellant.
The case is posted for hearing on 17th May 2016.