Aparesh Kumar Singh, J. - (1.) All these writ petitions have been tagged together and are being analogously heard and disposed of as they arise out of the common impugned order. Petitioners Raj Jaiswal and Gyan Chand Jaiswal are the Directors of the petitioner Company Makers Casting Pvt. Ltd.
(2.) All these petitioners are aggrieved by the order dated 27.01.2020 passed by the Customs, Excise and Service Tax Appellate Tribunal (in short 'CESTAT'), Kolkata, whereunder appeal filed by the petitioners being Defect Memo Nos. D/MA (ROA)-77517 of 2019 & D/76041 of 2019, D/MA (ROA)-77526 of 2019 & D/76042 of 2019 and D/MA(ROA)-77527 of 2019 & D/76043 of 2019, have been dismissed on the sole ground of non-compliance of pre-deposit under section 35F of Central Excise Act, 1944 (In short 'C.E.A'). Petitioners have further sought a direction upon the CESAT, Kolkata to hear and decide their appeal on its own merit without insisting upon pre-deposit, as stipulated under section 35F of C.E.A.
(3.) Petitioner's claim relates to waiver of pre-deposit under the amended section 35F of C.E.A. Both the pre-amended and amended Section 35F are extracted hereunder. Pre-amended section 35-F reads as under: "35F. Deposit, pending appeal, of duty demanded or penalty levied - where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decides such application within thirty days from the date of its filing. Explanation:-For the purposes of this section duty demanded shall include,- (i) amount determined under section 11D; (ii) amount of erroneous Cenvat credit taken; (iii) amount payable under rule 57CC of Central Excise Rules, 1944; (iv) amount payable under rule 6 of Cenvat Credit Rules, 2001 or Cenvat Credit Rules, 2002 or Cenvat Credit Rules, 2004; (v) interest payable under the provisions of this Act or the rules made thereunder."(Emphasis supplied) By virtue of Section 105 of the Finance (No.2) Act, 2014, Section 35F has been substituted. The substituted Section 35F which has come into force with effect from 6 th August, 2014, is as under:- "35F. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal.- The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal.- (i) under sub-section (1) of Section 35, unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the Principal Commissioner of Central Excise or Commissioner of Central Excise; (ii) against the decision or order referred to in clause (a) of subsection(1) of section 35B, unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against; (iii) against the decision or order referred to in clause (b) of subsection(1) of section 35B, unless the appellant has deposited ten per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against; Provided that the amount required to be deposited under this section shall not exceed rupees ten crores; Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No.2) Act, 2014. Explanation.- For the purposes of this section "duty demanded" shall include,- (i) amount determined under section 11D; (ii) amount of erroneous Cenvat credit taken; (iii) amount payable under rule 6 of the Cenvat Credit Rules, 2001 or the Central Credit Rules, 2002 or the Cenvat Credit Rules, 2004." (Emphasis supplied) ;