In a recent judgement, the Allahabad High Court (HC) held that pre-deposit of 7.5% of disputed demand duty is mandatory to file an appeal under section 35-G of the Central Excise Act, 1944
Sri A.P. Mathur appeared on behalf of the assessee appellant and Sri Amit Mahajan appeared on behalf of the revenue.
Shri Amit, the petitioner filed an appeal under Section 35-G of the Central Excise Act, 1944 to assail the order of the Customs, Excise & Service Tax Appellate Tribunal, Regional Bench, Allahabad by which the Tribunal has dismissed the appeals of the assessee as defective owing to non-payment of pre-deposit being 7.5% of the disputed demand duty.
It was argued that the entire assets of the assessee lie under the attachment. Therefore, the Tribunal ought to have considered the irreparable injury that has been caused to the assessee owing to the dismissal of its first appeal under the scheme of the Act.
Section 35G of the Central Excise Act, 1944 provides that an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July 2003 ( not being an order relating, among other things, to the determination of any question having a relation to the rate of duty f excise or the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law.
On the other hand, the revenue contended that the petitioner has filed a statutory appeal under Section 35-G of the Act, and it was mandatory on part of the assessee to fulfil the requirement of Section 35-F(ii) of the Act. A coram comprising of Pritinker Diwaker, Acting Chief Justice and Justice Saumitra Dayal Singh observed that the assessee could have maintained its appeal only against pre-deposit of 7.5% of the disputed demand of duty.
The Court allowed one opportunity to appeal Since the assessee appellant has prayed for two weeks to be granted to make a pre-deposit of 7.5% of the disputed demand of duty to maintain its appeal. The order of the Tribunal dated 28.04.2022 was set aside and the petition was allowed.
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