Page 253 - ELT_1st September 2020_Vol 373_Part 5

2020 ] RAGHVENDRA MISHRA v. COMMISSIONER OF CENTRAL EXCISE, LUCKNOW 691

Attachment of disputed premises cannot be considered as deposit - On facts
assessee having no finance to deposit said amount in question and requesting
appeal to be disposed of is not maintainable for non-compliance of Section 35F
of Central Excise Act, 1944. - Section 35F of Central Excise Act, 1944 requires cash
deposit of 7.5% of the dues and there is no provision for adjustment of any other security.
Tribunal being a creature of the Act is bound by the provisions of the Act and has no
powers or jurisdiction to convert the mandate of Section 35F into any other act. As such,
for entertaining the appeals appellants are required to deposit the amounts in terms of
Section 35F. [paras 3, 4, 5]
Appeals dismissed
REPRESENTED BY : Shri Ashish Kumar Shukla, Advocate, for the Appel-
lant.
Shri B.K. Jain, Authorised Representative, for the Re-
spondent.
[Order per : Archana Wadhwa, Member (J)]. - After hearing both the
sides Learned Advocate Shri Ashish Shukla appearing for Shri Raghvendra
Mishra, (nobody appeared for Shri Vishnu Kant Sharma) and Shri B.K. Jain
Learned AR appearing for the Revenue, we find that the Stay Petition filed by the
appellants have not been disposed of till date, though the matter relates to the
year 2013. It is seen that demand of duty of Excise to the tune of Rs. 6.57 crores
approximately stands confirmed against Shri Raghvendra Mishra along with
imposition of penalty of identical amount. Further penalty of identical amount
stands imposed on Shri Vishnu Kant Sharma in terms of provisions of Rule 26 of
Central Excise Rules, 2002. As such, Stay Petitions are required to be disposed of
first before the disposal of the appeal.
2. The provisions of Section 35F of Central Excise Act were amended in
August, 2014 requiring the appellant to deposit 7.5% of the confirmed dues so as
to make their appeal entitled to be heard by the Tribunal. Many High Courts
have hold that such amended provisions would apply to the Stay Petitions filed
before the said date and pending disposal. As such in terms of the provisions of
35F the appellants are required to deposit 7.5% of the dues confirmed against
them.
3. Learned Advocate appearing for the appellant fairly agrees that the
said deposits have not been made by him nor are they in a position to deposit the
said amount. However, he submits that the disputed premises of Shri
Raghvendra Mishra stands attached by the Revenue and as such he submits that
the same may be considered as deposit for the purpose of Section 35F. However
on going through the provisions of 35F, we note that the same requires cash de-
posit of 7.5% of the dues and there is no provision for adjustment of any other
security. Tribunal being a creature of the Act is bound by the provisions of the
Act and has no powers or jurisdiction to convert the mandate of Section 35F into
any other act. As such, we hold that for entertaining the appeals appellants are
required to deposit the amounts in terms of Section 35F.
4. At this stage, Learned Advocate submits that his clients have no fi-
nance to deposit the amount in question even if some more time is given to them.
He accordingly prays that the appeals may be disposed of as not maintainable
for non-compliance of Section 35F.

EXCISE LAW TIMES  1st September 2020  253