CX - while incorporating provision into existing statute, Legislatures are fully aware of position of law - Pre-deposit mandatory even in respect of orders passed prior to 06.08.2014 and appeals filed thereafter: CESTAT
By TIOL News Service
KOLKATA MAR 30, 2015: AN order-in-original was passed by the CCE, Kolkata-IV on 11.07.2014 confirming CE duty demands of amounts of Rs.15.65crores, Rs.16.26crores, Rs.17.48crores and Rs.12.53 crores respectively against the appellants. Penalties of equivalent amounts also got tagged with these duty demands.
Appeals were filed by the appellants before the CESTAT but without making any pre-deposit.
In the meantime, the newly substituted provisions of section 35Fof the CEA, 1944 came on to the scene w.e.f 06.08.2014 by the Finance Act, 2014. The substituted section inter alia prescribes a mandatory fixed pre-deposit of 7.5%/10% of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute for filing appeal. The amount of pre-deposit payable is subject to a ceiling of Rs.10 crore.
The appeals were, therefore, placed by the Registry before the Bench on 22/12/2014 for appropriate directions, in view of the CESTAT Circular dt. 14.10.2014 as the appellants had not complied with the provisions of Section 35F of CEA, 1944, even though all these appeals were filed on or after 6th of August 2014.
Before the CESTAT, the appellant submitted that all the appeals have been filed against the respective orders which were passed prior to the amendment to Section 35F of CEA, 1944. Inasmuch as since the amended Section 35F of CEA,1944 came into force from 06.08.2014, the same would not be applicable to these appeals. Support is drawn from the judgment of the Supreme Court in the case of HoseinKasam Dada (India) Ltd. Vs. State of M.P. - 2002-TIOL-363-SC-CT.
The AR submitted that the cited judgment has been discussed in the latter judgments in the case of Navin Chandra Chhotelal Vs. Central Board of Excise & Customs - 2002-TIOL-323-SC-CUS & Vijay Prakash D. Mehta Vs. Collector of Customs - 2002-TIOL-427-SC-CUS in the context of Section 129E of Customs Act, 1962and it has been categorically laid down that the right to appeal is not an unfettered right but subject to conditions/limitation; that non-compliance with Sec.129E of the CA,1962 would result in dismissal of the Appeal. The AR also brought to the notice the WZB Tribunal decision in the case of M/s Bhatia Global Trading Ltd. Vs. Commissioner Customs (Preventive), Mumbai - 2014-TIOL-2637-CESTAT-MUM, wherein after considering all aspects, the Bench had dismissed the Appeals filed after 06.08.2014 for not complying with the amended Sec.129E of the Customs Act,1962.
The Bench after extracting the amended provisions of s. 35F of the CEA, 1944 (w.e.f 06.08.2014) observed -
"6. A plain reading of the aforesaid provision makes it abundantly clear that the Tribunal or Commissioner shall not entertain any appeal under Section 35 unless the appellant has made pre-deposit of applicable amount mentioned in the said provision. Therefore, in terms of the amended Section 35F of CEA,1944 w.e.f. 06th August, 2014, this Tribunal is barred from entertaining any appeal unless pre-deposit as mentioned in Section 35F is complied with. It is a cardinal principle of statutory interpretation that while incorporating a statute or a provision into the existing statute, the Legislatures are fully aware of the position of law as was prevailing on the date of new legislation or bringing the change into the existing legislation. We find the law i.e. amended Sec.35F of CEA, 1944 is very clear and unambiguous and the intention of the legislature is also loudly made clear about its applicability. Needless to emphasize, the Tribunal is a creature of the statute and accordingly bound by the statute as has been held recently by the Hon'ble Andhra Pradesh High Court in the case of Maa Mahamaya India Ltd. Vs. CCE, C & ST, Vishakhapatnam-I - 2014-TIOL-2014-HC-AP-CX. Also, we find that the co-ordinate Bench at Mumbai in M/s Bhatia Global Trading Ltd. Vs. Commissioner Customs(Preventive), Mumbai (supra) has dismissed the Appeals filed after 06.08.2014 for non-compliance with the statutory requirement of pre-deposit…."
Holding that the appeals are not maintainable, the same were dismissed.
In passing: See 2015-TIOL-511-HC-AP-CX & 2015-TIOL-499-HC-KER-CUS in DDT 2548
(See 2015-TIOL-576-CESTAT-KOL)
