2015 (10) TMI 2451

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....35F of Central Excise Act as amended on 6th August, 2014. They also filed Stay application under Section 35F of the said Act, as it stood prior to amendment. 2. After hearing both the sides and on perusal of the records, we find that the applicant filed the appeal on 6.7.2015 against the impugned Order No. SIL-EXCUS-000-027-14-15 dtd 25.3.2015 passed by the Commissioner of Central Excise and Service Tax, Silvasa Commissionerate. The main contention of the Learned Advocate is that the Show Cause Notice was issued on 17th December 2013, prior to amendment of Section 35F and therefore, the Stay application filed by the appellant would be heard. There is no requirement to submit the proof of mandatory deposit under Section 35F of the said Act,....

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.... Central Excise); Against the decision or order referred to in clause (a) of sub-section (1) of Section 35B, unless the appellant has deposited seven and half per cent of the duty, in case where duty or duty and penalty are dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against; Against the decision or order referred to in clause (b) of sub-section (1) of section 35B, unless the appellant has deposited ten percent of the duty, in case were 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 crore....

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....unt as specified therein in respect of appeal filed after amendment. In our considered view, the applicant is required to furnish the evidence of the mandatory deposit as required under amended section 35F of the Act.  7. The Learned Advocate strongly relied upon the decision of the Hon'ble Supreme Court in the case of M/s Hoosein Kasam Dada (India) Ltd (supra). In that case, the Hon'ble Supreme Court observed that the pre-existing right of appeal cannot be destroyed by amendment unless the amendment was not retrospective. In the present case, the impugned order was passed after amendment and therefore, no right of appeal was accrued  in favour of the applicant, prior to by issue of Adjudication Order. So, the case law would not ....

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....pellant were to do so, the Tribunal shall not entertain any appeal. This provision would, therefore, indicate that it would apply to all appeals which would be filed on and from the date of the enforcement of Section 35F of the Act. 19. The intendment of Section 35F of the Act is further clarified by the second proviso which stipulates that the provisions of the section shall not apply to stay applications and appeals which were pending before any appellate authority prior to the commencement of Finance (No.2) Act 2014. The second provision is a clear indicator that Parliament has exempted the requirement of complying with the pre-deposit as mandated by Section 35F(1) of the Act as amended only in the case of those stay applications and a....