Orissa High Court
M/S. Jindal Steel & Power Limited vs Commissioner Central Tax on 19 April, 2022
AFR
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 15878 of 2018
M/s. Jindal Steel & Power Limited ... Petitioner
Mr. Rudra Prasad Kar & Ms. Neha Gulati
Advocates for the petitioner
-versus-
Commissioner Central Tax, ... Opposite Party
GST & CX Commissionerate
Rourkela
Mr. Choudhury Satyajit Mishra,
Senior Standing Counsel
(GST, Central Excise & Customs)
for opposite party
CORAM:
JUSTICE JASWANT SINGH
JUSTICE M.S. RAMAN
ORDER
19.04.2022
W.P.(C) No. 15878 of 2018
&
Order No. I.A. No. 4359 of 2022
11. 1. This matter is taken up by virtual/physical mode.
2. The Petitioner has filed the present writ petition bearing
W.P.(C) No. 15878 of 2018 assailing the order dated 19th
March, 2018 passed by the learned Customs, Excise and
Service Tax Appellate Tribunal, Eastern Regional Bench,
Kolkata (for short referred to as 'the CESTAT'), whereby
the demand of differential excise duty of Rs.333,22,45,002/-
along with interest and penalty raised in the Order-in-
Original dated 29th November, 2017 raised by the
Commissioner of Central Tax, GST & CX
Commissionerate, Rourkela has been affirmed for non-
P.T.O.
// 2 //
fulfillment of the condition of pre-deposit of 7.5% of the
duty subject to the amount specified in the first proviso to
Section 35(F) of the Central Excise Act, 1944 (as amended
vide the Finance (No. 2) Act, 2014 (No. 25 of 2014),
published in Gazette of India, Extraordinary No.29, dated
06.08.2014).
3. The petitioner has taken a stand that the valuation of iron
ore pellets cleared from its unit should have been in terms of
Rule 8 of the Central Excise Valuation (Determination of
Price of Excisable Goods) Rules, 2000 inasmuch as the
clearance of said iron ore pellets were made to its own units
which cannot be comprehended within the meaning of
"related units", rather than modalities prescribed under Rule
4 of said Rules as claimed by the Revenue. Therefore, the
differential amount sought to be raised by way of demand is
arbitrary and contrary to already settled cases by the
Courts/CESTAT. It is further stated by the petitioner that
acute hardship faced by the Petitioner-Company coupled
with strong prima facie case would entitle it to claim waiver
of pre-deposit under Section 35F of the Central Excise Act,
1944.
4. This Court vide order dated 17th April, 2018 had directed
the Opposite Party to take no coercive action pursuant to the
demand under Order-in-Original till the next date, which
has concededly been continued all this while.
5. Now the aforesaid I.A. No. 4359 of 2022 has been instituted
with the prayer to permit the deposit of the amounts towards
// 3 //
the condition of pre-deposit so as to get hearing of appeal on
merits before the First Appellate Authority i.e. CESTAT. In
fact at the time of hearing, reference has been made to the
Memo dated 19th April, 2022 filed by the counsel for the
Petitioner along with appended documents trying to
establish that a sum of Rs.10.00 crores as pre-deposit under
proviso to Section 35-F of the Central Excise Act, 1944 in
respect of Appeal No. E/75563/18-DB filed before the
CESTAT, Kolkata stands deposited so as to seek setting
aside the order dated 19th March, 2018 passed by the
CESTAT and further direction for hearing of the aforesaid
appeal on merits by the First Appellate Authority. It is urged
that the delay in deposit towards the condition of pre-
deposit is liable to be condoned for hearing on merits in
view of the settled law permitting such a recourse. In
support of such contention the Judgment of the Hon'ble
Supreme Court in case of Super Industries and Ors. Vrs.
Commissioner of Central Excise and Customs, Vadodara,
(2014) 13 SCC 651 = 2015 (318) ELT 368 (SC) has been
cited.
6. Upon notice of the aforesaid application, Mr. Choudhury
Satyajit Mishra, Senior Standing Counsel appears for the
Revenue and has no objection for taking up the main writ
petition for hearing today itself and disposing of the same in
terms of what is prayed the aforesaid application.
7. The exposition of law with regard to applicable statutory
provision on the date of entertainment of appeal has been
propounded by this Court in the case of Indian Oil
// 4 //
Corporation Vrs. Odisha Sales Tax Tribunal, Cuttack, 2009
(Supp.1) OLR 928 = 109 (2010) CLT 355. This Court
succinctly laid down as follows:
"22. In view of the above, law can be summarised that if a
condition of pre-deposit is imposed, a party while filing
the appeal is bound to meet the requirement of the pre-
deposit condition. However, it will depend upon the
language of statutory provisions and particularly the
words used therein as to whether the memo of appeal
can be presented/filed or instituted without meeting the
pre-deposit condition. In case 'entertaining' the appeal
is not permissible, the appeal can be filed, but may not
be heard on merit unless the pre-deposit condition is
met. The pre-deposit condition is imposed to regulate
the procedure of appeal. Therefore, in such an
eventuality, where there is no prohibition for filing the
memorandum of appeal without meeting the pre-
deposit condition, the appeal can be heard only after
meeting it."
8. As is revealed from the record, it is admitted fact that the
petitioner had not deposited as statutorily required to do
under Section 35F of the Central Excise Act. However,
enclosing copy of e-receipt to the Memo dated 19.04.2022
the counsel for the petitioner submitted that the petitioner-
company has made a payment of Rs.10,00,00,000/- (rupees
ten crores) which is the maximum amount specified under
the first proviso to Section 35F of the Central Excise Act for
compliance of mandatory requirement for entertainment of
appeal.
// 5 //
9. Section 35F of the Central Excise Act, 1944 has been
amended by way of substitution vide the Finance (No. 2)
Act, 2014 (No. 25 of 2014), published in Gazette of India,
Extraordinary No.29, dated 06.08.2014, upon receipt of
assent of the President of India on 6th of August, 2014. For
convenience, position prior to amendment and post
amendment is given hereunder:
Pre-amendment position Post amendment position
of Section 35F of Section 35F
[prior to 06.08.2014] [after 06.08.2014]
35F.Deposit, pending 35F. Deposit of certain
appeal of duty percentage of duty
demanded or penalty demanded or penalty
levied.-- imposed before filing
appeal.--
Where in any appeal
under this Chapter, The Tribunal or the
the decision or order Commissioner
appealed against (Appeals), as the case
relates to any duty may be, shall not
demanded in respect entertain any
of goods which are appeal.--
not under the control
of Central Excise (i) under sub-section (1)
authorities or any of Section 35, unless
penalty levied under the appellant has
this Act, the person deposited seven and a
desirous of half per cent of the
appealing against duty, in case where
such decision or duty or duty and
order shall, pending penalty are in dispute,
the appeal, deposit or penalty, where such
// 6 //
with adjudicating penalty is in dispute, in
authority the duty pursuance of a
demanded or the decision or an order
penalty levied: passed by an officer of
Central Excise lower in
Provided that where rank than the Principal
in any particular Commissioner of
case, the Central Excise or
Commissioner Commissioner of
(Appeals) or the Central Excise;
Appellate Tribunal
is of opinion that (ii) against the decision or
the deposit of duty order referred to in
demanded or clause (a) of sub-
penalty levied would section (1) of Section
cause undue 35B, unless the
hardship to such appellant has deposited
person, the seven and a half per
Commissioner cent of the duty, in
(Appeals) or, as the case where duty or
case may be, the duty and penalty are in
Appellate Tribunal, dispute, or penalty,
may dispense with where such penalty is
such deposit subject in dispute, in
to such conditions pursuance of the
as he or it may deem decision or order
fit to impose so as to appealed against;
safeguard the
interests of revenue: (iii) against the decision or
order referred to in
Provided further that clause (b) of sub-
where an section (1) of Section
application is filed 35B, unless the
before the appellant has deposited
Commissioner ten per cent of the duty,
(Appeals) for in case where duty or
dispensing with the duty and penalty are in
// 7 //
deposit of duty dispute, or penalty,
demanded or penalty where such penalty is
levied under the first in dispute, in
proviso, the pursuance of the
Commissioner decision or order
(Appeals) shall, appealed against;
where it is possible
to do so, decides Provided that the
such application amount required to be
within thirty days deposited under this
from the date of its section shall not
filing. exceed rupees ten
crores;
Explanation:--
Provided further that
For the purposes of the provisions of this
this section duty section shall not apply
demanded shall to the stay applications
include,-- and appeals pending
before any appellate
(i) amount authority prior to the
determined commencement of the
under Section Finance (No.2) Act
11D; 2014.
(ii) amount of Explanation.--
erroneous
CENVAT credit For the purposes of
taken; this section "duty
demanded" shall
(iii) amount payable include,--
under Rule
57CC of (i) amount
Central Excise determined under
Rules, 1944; Section 11D;
(iv) amount payable (ii) amount of
under Rule 6 of erroneous CENVAT
// 8 //
CENVAT Credit credit taken;
Rules, 2001 or
CENVAT Credit (iii) amount payable
Rules, 2002 or under Rule 6 of
CENVAT Credit the CENVAT Credit
Rules, 2004; Rules, 2001 or the
CENVAT Credit
(v) interest payable Rules, 2002 or the
under the CENVAT Credit
provisions of Rules, 2004.
this Act or the
rules made
thereunder.
10. Intention of amendment can be culled out from bare reading
of the provisions as they stood prior to amendment and
post-amendment in juxtaposition. Under the provisions prior
to amendment an appellant was required to deposit the duty
demanded or the penalty levied with the Appellate
Authority or the Tribunal; and the application for waiving
the deposit also could be preferred. Weighing balance,
considering the undue hardship on the part of the assessee-
appellant on the one hand and safeguard of the interests of
the revenue on the other, the amount of deposit could be
waived by the Tribunal or the Appellate Authority by
exercising judicial discretion. However such discretion has
been curtailed after amendment of Section 35F with effect
from 06.08.2014. Substituted Section 35F of the Central
Excise Act, 1944 as a matter of rule provided that, 7.5% or
10%, as the case may be, of the duty demanded or penalty
levied shall have to be deposited pending the appeal subject
to deposit of maximum amount of Rs.10,00,00,000/-. Thus,
// 9 //
by virtue of the substituted Section 35F of the Act, 1944,
invariably 92.5% or 90% of tax demanded or duty levied is
waived during the pendency of the appeal.
11. The Hon'ble Supreme Court in the case of Tecnimont Pvt.
Ltd. Vrs. State of Punjab, 2019 SCC OnLine SC 1228
examined the issue that even though Mohammed Kunhi,
(1969) 2 SCR 65 = AIR 1969 SC 430 = (1969) 71 ITR 815
(SC) laid down that an express grant of statutory power
carries with it, by necessary implication, the authority to use
all reasonable means to make grant effective, can such
incidental or implied power be drawn and invoked to grant
relief against requirement of pre-deposit when the statute in
clear mandate says-- no appeal be entertained unless 25%
of the amount in question is deposited? Would not any such
exercise make the mandate of the provision of pre-deposit
nugatory and meaningless? The Hon'ble Court held as
follows:
"In any case the principle laid down in Matajog Dubey Vrs.
H.C. Bhari Dobey, 1955 (2) SCR 925 states with clarity that
so long as there is no express inhibition, the implied power
can extend to doing all such acts or employing such means
as are reasonably necessary for such execution. The
reliance on the principle laid down in Mohammed Kunhi,
(1969) 2 SCR 65 cannot go to the extent, as concluded by
the High Court, of enabling the Appellate Authority to
override the limitation prescribed by the statute and go
against the requirement of pre-deposit."
// 10 //
The Hon'ble Supreme Court in the said case being
Tecnimont Pvt. Ltd. Vrs. State of Punjab, 2019 SCC OnLine
SC 1228 further observed as follows:
"30. As stated in P. Laxmi Devi, (2008) 4 SCC 720 and Har
Devi Asnani, (2011) 14 SCC 160, in genuine cases of
hardship, recourse would still be open to the
concerned person. However, it would be completely a
different thing to say that the Appellate Authority itself
can grant such relief. As stated in Shyam Kishore,
(1993) 1 SCC 22 any such exercise would make the
provision itself unworkable and render the statutory
intendment nugatory."
12. This Court in Indian Oil Corporation Vrs. Odisha Sales Tax
Tribunal, Cuttack, 2009 (Supp.1) OLR 928 = 109 (2010)
CLT 355, made the following observations with regard to
right of appeal:
"7. Further, there can be no quarrel to the settled legal
proposition that right of appeal may not be absolute.
The Legislature can put conditions for maintaining the
same. In Vijay Prakash D. Mehta & Jawahar D. Mehta
Vrs. Collector of Customs (Preventive), Bombay, AIR
1988 SC 2010, the Hon'ble Apex Court held as under:
"Right of appeal is neither an absolute right nor an
ingredient of natural justice, the principles of which
must be followed in all judicial and quasi judicial
adjudications. The right to appeal is a statutory right
and it can be circumscribed by the conditions in the
grant... If the statute gives a right to appeal upon
certain conditions, it is upon fulfilment of these
conditions that the right becomes vested and
exercisable to the appellant... The purpose of the
// 11 //
section is to act in terrorem to make the people comply
with the provisions of law."
8. Similar view has been reiterated by the Hon'ble Apex
Court in Anant Mills Co. Ltd. Vrs. State of Gujarat,
AIR 1975 SC 1234; and Shyam Kishore & Ors. Vrs.
Municipal Corportation of Delhi & Anr., AIR 1992 SC
2279; Gujarat Agro Industries Co. Ltd. Vrs. Municipal
Corporation of the City of Ahmedabad & Ors., AIR
1999 SC 1818. In Shyam Kishore (supra) the Hon'ble
Supreme Court placed reliance upon its earlier
Judgment in Nandlal Vrs. State of Haryana, AIR 1980
SC 2097, wherein it has been held that "right of appeal
is a creature of statute and there is no reason why the
Legislature, while granting the right, cannot impose
conditions for the exercise of such right so long as the
conditions are not so onerous as amount to
unreasonable restrictions rendering the right almost
illusory", the Court cannot interfere.
9. In Bengal Immunity Company Vrs. State of Bihar, AIR
1955 SC 661, the Hon'ble Supreme Court has observed
that if there is any hardship, it is for the Parliament to
amend the law, but the Court cannot be called upon to
discard the cardinal rule of interpretation for
mitigating a hardship. If the language of an Act is
sufficiently clear, the Court has to give effect to it,
however, inequitable or unjust the result may be. As is
said, 'dura lex sed lex' which means 'the law is hard
but it is the law'. Even if the statutory provision causes
hardship to some people, it is not for the Court to
amend the law. A legal enactment must be interpreted
in its plain and literal sense as that is the first principle
of interpretation.
// 12 //
10. In Martin Burn Ltd. Vrs. The Corporation of Calcutta,
AIR 1966 SC 529, the Hon'ble Supreme Court while
dealing with the same issue observed as under:
"A result flowing from a statutory provision is never
an evil. A Court has no power to ignore that provision
to relieve what it considers a distress resulting from its
operation. A statute must of course be given effect to
whether a Court likes the result or not."
11. Similar view has been reiterated by the Hon'ble
Supreme Court in The Commissioner of Income-tax,
West Bengal-I, Calcutta Vrs. M/s. Vegetables Products
Ltd., AIR 1973 SC 927.
12. It is the settled legal position that taxing statute must
be construed strictly. (vide Manish Maheshwari Vrs.
Assistant Commissioner of Income-tax & ors., AIR
2007 SC 1696; Southern Petrochemical Industries Co.
Ltd. Vrs. Electricity Inspector & ETIO & ors., AIR
2007 SC 1984; and Bhavya Apparels (P) Ltd. & anr.
Vrs. Union of India & anr., (2007) 10 SCC 129.
13. In view of the above, it becomes evident that the appeal
is a statutory right, which can be created only by the
Legislature and it does not lie by acquiescence/consent
of the parties or even the writ Court is not competent to
create the appellate forum if not provided under the
statute. If Legislature in its wisdom has imposed
certain conditions, like pre-deposit for the purpose of
filing or hearing of the appeal, the Courts are
supposed to give strict adherence to the statutory
provisions. The purpose of imposing the pre-deposit
condition is that right of appeal may not be abused by
any recalcitrant party and there may not be any
difficulty in enforcing the order appealed against if
ultimately it is dismissed. There must be speedy
recovery of the amount of tax due to the authority."
// 13 //
13. Reference also may be had to recent Judgment being ECGC
Limited Vrs. Mukul Shriram EPC JV, 2022 SCC OnLine SC
184 wherein the following observation has been made:
"32. The Division Bench of the Madras High Court in
Dream Castle v. Union of India, W.P. No. 13431 of
2015 etc. decided on 18.04.2016 dealing with amended
Section 35 of the Central Excise Act by Finance Act
No. 2 of 2014 held that when the unamended condition
gave only a chance or hope for an assessee to get a
total waiver at the discretion of the Appellate
Authority, the same cannot be equated to a vested right
or stated to be retrospective, unless it is definitely
shown that the amended condition is more onerous
than the unamended condition. It was held as under:
"54. Therefore, it is well settled that the right of appeal
is a creature of statute and the legislature is well
within its competence to impose conditions for the
exercise of such a right subject only to the
restriction that the conditions so imposed are not
so onerous as to amount to unreasonable
restrictions rendering the right almost illusory.
***
59. Therefore, if one condition that was already
available in the statute for the exercise of a right
of appeal, is merely replaced by another
condition, the same cannot be said to be
retrospective, unless it is definitely shown that the
amended condition is more onerous than the
unamended condition. When the unamended
condition gave only a chance or hope for an
assessee to get a total waiver at the discretion of
the Appellate Authority, the same cannot be
equated to a vested right. A mere chance of
// 14 //
convincing the Appellate Authority to exercise the
discretion for the grant of a total waiver is no
vested right. The amendment, in our considered
view, did not take away a right vested, but merely
made a chance divested. What has now gone, is
not the right, but the chance or hope. Therefore,
the first contention of the learned Senior counsel
for the petitioner is liable to be rejected."
33. There is another line of judgments taking a view that
right of appeal is a creation of statute and the
legislature is competent to determine the conditions on
which an appeal would lie. These are not the cases of
amending or repeal of a statute, therefore, such
judgments are not applicable to the questions arising
in the present application."
14. This Court, in Jindal Stainless Ltd. Vrs. State of Odisha,
reported in (2012) 54 VST 1 (Ori) delved into the question
as to whether the condition precedent for pre-deposit of tax
or interest or both in dispute in addition to payment of
admitted tax for entertaining an appeal as provided under
Section 77(4) of the Odisha Value Added Tax Act, 2004
read with proviso to Rule 87 of the OVAT Rules, 2005 was
unreasonable, oppressive, violative and ultra vires of Article
14 of the Constitution of India and answered as follows:
"25. Therefore, it becomes crystal clear that appeal is a
statutory remedy and the same is maintainable
provided that the Statute enacted by a competent
Legislature provides for it. Further, there can be no
quarrel that the right of appeal cannot be absolute and
the Legislature can put conditions for maintaining the
same.
// 15 //
26. For the reasons stated above, the decisions relied upon
by the petitioner are of no help to the petitioner as
those decisions are rendered in respect of particular
facts of that case.
27. In view of the above, we are of the considered view that
the provisions of Section 77(4) of the OVAT Act
requiring deposit of 20% of the tax or interest or both
in dispute as a precondition for entertaining an appeal
against the order enumerated under Section 77(1) of
the OVAT Act does not make the right of appeal
illusory and such a condition is within the legislative
power of the State Legislature and cannot be held to be
unreasonable and violative of Article 14 of the
Constitution."
15. The Hon'ble Jharkhand High Court at Ranchi has analysed
the position in Satya Nand Jha Vrs. Union of India, 2016
SCC OnLine Jhar 2323 = (2017) 2 AIR Jhar R 619 =
(2016) 4 JBCJ 392 (HC) in the following lines:
"17. By virtue of substituted Section 35F of the Central
Excise Act, 1944 the following objects are going to be
achieved:--
(a) There shall be safeguard of the revenue;
(b) Multifariousness of petitions in one or other
forum relating to waiver of deposits will
completely come to an end;
(c) It reduces the discretion of Commissioner
(Appeals) or the Tribunal;
(d) It balances "undue hardship" and "safeguard of
the revenue";
// 16 //
(e) It is beneficial to the assessee-appellants as the
Statute itself waives 92.5% or 90% of the duty
demanded or penalty levied, as the case may be,
whereas under the unamended Section 35F, the
whole amount was to be deposited and as an
exception, application for waiver of deposit was
to be preferred;
(f) Conditional right to prefer an appeal abolishes
unnecessary and frivolous appeals. "Chance
taking" assessees-appellants will not file appeals,
due to this condition of depositing 7.5% or 10% of
the duty demanded or penalty imposed;
(g) Cap of Rs.10 Crores (1st proviso to Section 35F)
makes the provision of new Section 35F more
balanced;
(h) Change in the provision of unamended Section
35F and the newly substituted Section 35F is mere
procedural;
(i) By virtue of substituted Section 35F the collection
of revenue in case appeals are being preferred,
will be in a systematic manner;
Thus, the classification has reasonable nexus with the
aforesaid object, sought to be achieved by the Act. No
legislation relating to tax can be declared to be illegal,
much less unconstitutional, on the ground of being
harsh, on the anvil of Article 14 of the Constitution of
India otherwise, every tax payer will feel every
legislation relating to taxation to be a harsh one. The
broader classification is to be seen and not the micro
classification."
Against such lucid analysis of amended provisions in
Section 35F vis-à-vis provisions as they stood prior to
// 17 //
amendment being challenged before the Hon'ble Supreme
Court in S.L.P.(C) No. 31297 of 2016 [Satya Nand Jha Vrs.
Union of India], the same came to be dismissed vide Order
dated 07.11.2016.
16. In the case of Santani Sales Organisation Vrs. Central
Excise, Customs and Service Tax Appellate Tribunal, Delhi
and others, Writ Petition (Civil) No. 4551 of 2017, vide
Judgment dated 31st May, 2018 it is said that:
"12. It is clear from the aforesaid provisions that a graded
scale of pre-deposit has been provided. In case of first
appeal, whether before the Tribunal or before the
Commissioner (Appeals), 7.5% of the duty and penalty
in dispute must be deposited. In case of second appeal
before the Tribunal, the amount gets enhanced from
7.5% to 10%."
17. The position as of now stands can be summarized as: prior
to 06.08.2014, the pre-deposit of percentage of duty
confirmed or penalty imposed for filing appeal before the
Commissioner (Appeals) or the CESTAT was not
mandatory and decision in this regard was to be taken by the
Commissioner (Appeals) and/or the CESTAT on the merit
of the case. The Appellate Authority was vested with
discretion to decide the amount of pre-deposit required to be
made by the appellant after taking into consideration the
merits of the case and/or considering financial hardship
caused to the assessee. This apart, safeguard of the interest
of revenue was also one of the factors. The Appellate
Authority was even competent to order for partial pre-
deposit or to waive the pre-deposit altogether. However,
// 18 //
with effect from 06.08.2014, such discretion of the
Commissioner (Appeals) and/or CESTAT has been
dispensed with. If the prescribed pre-deposit is not made by
the time of entertainment of the appeal, the appeal is liable
for rejection.
18. It is an undisputed position that a right to file an appeal is
not an absolute right but a right bestowed by the statute.
Thus, such a statutory right of appeal can be made subject to
conditions. However, though the right of appeal has been
made conditional by Section 35F of the Central Excise Act,
1944 it is unambiguously suggested that a party who desires
to challenge the Order-in-Original in appeal shall have to
deposit in terms of provisions contained in Section 35F of
the Central Excise Act. The requirement to make such
deposit is to be fulfilled for the purpose of "entertainment of
appeal" and not "filing of the appeal". This can only be
reasonable interpretation to the above provision which is
inconsonance with law laid down by this Court in Indian
Oil Corporation Vrs. Odisha Sales Tax Tribunal, Cuttack,
2009 (Supp.1) OLR 928 = 109 (2010) CLT 355; otherwise it
would require adding the words "filing of" to the above
provisions. Section 35F of the Central Excise Act did not
bar a party from filing an appeal unless the amounts of tax
and penalty demanded by the adjudicating authority are
deposited. Upon cumulative reading of legal position as
settled in Indian Oil Corporation Vrs. Odisha Sales Tax
Tribunal, Cuttack, 2009 (Supp.1) OLR 928 = 109 (2010)
CLT 355 and Satya Nand Jha Vrs. Union of India, 2016
// 19 //
SCC OnLine Jhar 2323 = (2017) 2 AIR Jhar R 619 =
(2016) 4 JBCJ 392 (HC), this Court does not see any reason
to interfere with the view expressed by the Commissioner
(Appeals), Bhubaneswar. Since the Order-in-Original itself
is dated 29th November, 2017, i.e., much after Section 35F
has been amended with effect from 6th August, 2014, the
Petitioner cannot avail a benefit of second proviso to
Section 35F Act (post amendment).
19. For the reason that by the date of entertainment of appeal no
evidence was placed on record by the petitioner-appellant to
show that it had complied with the condition hedged for
"entertainment of appeal". However, in view of the
undisputed contents of the Memo dated 19.04.2022 and the
application accompanied by the affidavit and no objection
being raised by the counsel for the Revenue to take up the
main writ petition for hearing and setting aside the order
dated 19th March, 2018 passed by the CESTAT. We
inclined to set aside the order dated 19th March, 2018
subject to the petitioner depositing cost of Rs.1,00,000/-
(rupees one lakh only), for the delay in predeposit, with the
Orissa High Court Bar Association, Cuttack within three
weeks from today. We direct the CESTAT to restore the
appeal bearing No. Ex.Appeal No. 75563 of 2018 to file,
upon furnishing proof of payment of cost, the CESTAT is
directed to proceed with the appeal and decide the same on
its merit. We direct the parties to appear before the learned
CESTAT on any working day in the 2nd week of May, 2022.
// 20 //
Considering the fact that the Petitioner has deposited
Rs.10,00,00,000/- (rupees ten crores) as condition for
entertainment of appeal as required under Section 35F of the
Central Excise Act, 1944 in consonance with the amended
provision, this Court directs for no coercive measure for
recovery of the rest of the demand raised pursuant to Order-
in-Original dated 29th November, 2011 by the
Commissioner of Central Tax, GST & CX
Commissionerate, Rourkela be taken till disposal of the
appeal by the CESTAT.
20. In the above terms, the writ petition as also the I.A. stand
disposed of.
Issue urgent certified copy as per rules.
(JASWANT SINGH)
JUDGE
(M.S.RAMAN)
JUDGE
Aks April 19, 2022
Cuttack
