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CX - Cus - ST - Stay application dismissed as infructuous as applicant is required to make mandatory pre-deposit of duty or penalty: CESTAT

By TIOL News Service

MUMBAI, DEC 05, 2014 : AGAINST an order passed by the CCE, Pune-I on 10.06.2014 the assessee filed an application before the CESTAT for waiver of pre-deposit of the adjudged dues.

This application/appeal was filed on 06.08.2014, the day the Finance (No.2) Bill, 2014 received the assent of the President and came to be enacted as the Finance Act, 2014.

On the said day/date, the substituted section 35F of the CEA, 1944 came into being and which mandates that for the Tribunal or the Commissioner (Appeals), as the case may be, to entertain an appeal, the appellant is required to pay 7.5%/10% of the duty/penalty confirmed against them.

When the matter came up for hearing recently, the applicant submitted that they have made a pre-deposit of the mandatory requirement of 7.5% of the duty; therefore, their stay application has become infructuous.

The Bench observed –

“4. Considering the fact that the Finance Act, 2014 has been introduced on 06.08.2014 and stay application is not required to be filed by the applicant, as they are required to make a mandatory pre-deposit of duty/penalty. In these circumstances, the application for waiver of pre-deposit of impugned demands has become infructuous. Accordingly, same is dismissed as infructuous.”

In passing: Extract from CESTAT Circular dated October 14, 2014 in the matter of Registration of appeals received on or after 06.08.2014 –

2. The above said provisions came into force with effect from 06.08.2014. However, some of the appellants/ consultants/ Counsels while presenting appeals are expressing reluctance in compliance with the condition of mandatory deposit stipulated under the Act as amended. Some of them have contend that as the Show Cause Notice was issued and demand confirmed earlier to 06.08.2014, the amended provisions are not applicable to their case. Few of them have relied upon judgments of various judicial forums to claim exemption from the mandatory deposit while filing appeal. It is pertinent to mention that no such exemption has been contemplated either in the amended provision of the Act statutes, or even in the clarificatory circular issued by the CBEC on the subject.

3. In view of above, DRs/ARs/TOs of all Benches are directed 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 .

(See 2014-TIOL-2450-CESTAT-MUM)


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