Case Law Details
Tax already paid by the Assessee out of the disputed amount at Adjudication level would be treated as mandatory pre-deposit for filing an appeal – No need for mandatory pre-deposit again
In the instant case, Zim Laboratories Ltd.(the Appellant) filed an appeal before the Hon’ble CESTAT, Mumbai against the Order passed by the Adjudicating Authority (the Impugned Order). Accordingly, the Appellant was required to make a pre-deposit of 7.5% of the tax/ penalty imposed on them as per the newly substituted Section 35F of the Central Excise Act, 1944 (the Excise Act) made applicable to the Finance Act, 1994 (the Finance Act) vide Section 83 thereof.
However, the Appellant did not make payment of the mandatory pre-deposit and consequently, the Registry raised an objection that the Appellant has not complied with the provisions of Section 35F of the Excise Act made applicable to the Finance Act vide Section 83 thereof, and the matter was listed before the Hon’ble CESTAT, Mumbai on the question of maintainability of appeal in the absence of mandatory pre-deposit.
The Appellant submitted that the total demand upon them works out to Rs. 26,36,890/- and they have paid a sum of Rs. 3.67 lakhs which has been appropriated by the Adjudicating Authority in the Impugned Order. Accordingly, the same may be treated as an amount equal to the pre-deposit to be made by the Appellant as per Section 35F of the Excise Act made applicable to the Finance Act vide Section 83 thereof.
The Hon’ble CESTAT, Mumbai considered the submissions made by the Appellant and held that as the Appellant has already paid a sum of Rs. 3.67 lakhs and same has been appropriated in the Impugned Order, therefore they are not required to make any further pre-deposit. Accordingly, the appeal was held to be maintainable and the Registry was directed to list the appeal for final hearing in due course.
Author Bio
one need to note once what money is paid by assesse is appropriated by department, sec 35 cannot be applied.
if department insists or the hon tribunal insists then move writ under art226 for severability ounder doctrine of severability,f such meaningless sections from statutes. that such severability too is natural justice and incidentally rule of law pls