16 July 2015

Mandatory pre-deposit for appeals filed prior to 6-8-2014

Rajasthan High Court has agreed with the earlier Order of the court (Paramount Security v. UoI – W.P. No. 12232) which had held that effect of the amendment to Section 35F of the Central Excise Act, 1944 in 2014 cannot be restricted only for appeals filed after 6-8-2014.
According to the earlier order such restriction would violate Article 14 of the Constitution of India. The High Court in the case of Ajay Industries Ltd. v. Commissioner also stayed the recovery proceedings while directing the appellant to comply with the amended provisions i.e. by depositing 10% of the adjudicated amount as pre-deposit.
Meanwhile, on this issue, Allahabad High Court in the case of Ganesh Yadav v. Union of India has held that only appeals which are filed on and after the enforcement of the amended provision on 6th August 2014 were to be governed by requirement of such mandatory pre-deposit. The Court in this regard relied upon opening words of Section 35F(1) and second proviso to the said provisions.
The contention that the amended provisions of Section 35F(1) of the Act would not apply as the notice to show cause was issued prior to the enforcement of Finance (No.2) Act, 2014, was hence rejected.


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