Meegora Steels Pvt. Ltd vs Commissioner Of Central Excise

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI

COURT No. II

APPEAL No.E/85731 & 85732/15

(Arising out of Order-in-Original No.31/Commr/M-III/KCG/2014-15 dated 31/12/2014 passed by Commissioner of Central Excise, Thane)

For approval and signature:

Honble Mr. P.K. Jain, Member (Technical) Honble Mr. S. S. Garg, Member (Judicial)

1. Whether Press Reporters may be allowed to see :No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy :Seen of the Order?

4. Whether Order is to be circulated to the Departmental :Yes authorities? ========================================

Meegora Steels Pvt. Ltd., Parimal D Mehta Appellants Vs. Commissioner of Central Excise, Respondent Mumbai-III

Appearance:

Shri.R.V.Shetty, Advocate for appellant Shri.V.K.Agarwal, Addl. Comm. (AR), for respondent

CORAM:

Honble Mr. P.K. Jain, Member (Technical) Honble Mr. S.S. Garg, Member (Judicial)

Date of Hearing : 02/06/2015 Date of Decision : 02/06/2015

ORDER NO

Per: P. K. Jain

1. The appellants have filed these two appeals without depositing 7.5% of the duty or penalty amount as per Section 35F of the Central Excise Act, 1944. The appellants were therefore issued show-cause notice for maintainability of the appeal before this Tribunal.

2. The learned Counsel for the appellants submitted that the appellants have no money to deposit the said amount of 7.5% and the appeals should be heard without any pre-deposit.

3. The learned Additional Commissioner (AR) submits that this Tribunal in the case of Maneesh Export (EOU) Vs. CCE, Belapur, vide order No.A/1295-1297/15/EB dated18/05/2015 in Appeal No.E/85591, 85628, 85629/15 has already held that the deposit of the said amount is mandatory and in view of the said decision, the appeals are required to be dismissed.

4. We have considered the submissions.

4.1 Section 35F as it stands from 06/08/2014 onwards reads as under:

SECTION 35F.?Deposit of certain percentage of duty demanded or penalty imposed before filing appeal.  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 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 [Principal Commissioner of Central Excise or 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 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 (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. 4.2 This Tribunal is a creature of Customs, Excise and Service Tax Acts and cannot go beyond the provisions of the said Act. Section 35F clearly provides for deposit of 7.5% and does not give this Tribunal any discretionary powers to waive the same. We accordingly, hold that the appeals are not maintainable. Accordingly, we dismiss the appeals filed by the appellants.

(Pronounced in Court)

(S.S. Garg) Member (Judicial) (P.K. Jain) Member (Technical)

pj

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