TaxTMI 
TaxTMI 
2016 (8) TMI 451
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.... appeal being a vested right, whether the provisions of law as applicable at the commencement of the lis would apply or the amended provisions as on the date of filing of appeal would apply. (2) Whether the second proviso to the amended section 35F can be interpreted as providing expressly or by necessary intendment that amended section 35F would apply to all appeals filed after 6.8.2014, even if the lis in respect of the same has arisen prior to 6.8.2014. (3) Whether the amended section 35F of the Central Excise Act, 1944, w.e.f. 06.08.2014, reduces or puts fetters upon the vested right of appeal that an appellant has or the same increased the scope of the appellate package, thereby not impinging upon the vested right of the appellant.? 3. With the consent of both sides and since a short point is involved, we took up the appeal for hearing and final disposal. It is, therefore, disposed of, by consent, finally by this order. 4. The appeal is preferred by the assessee who entered into an agreement dated 28th February, 2006, with the Board of Cricket Control in India ("BCCI" for short). In terms of this agreement, it was granted a licence of media rights on an exclusive basis in....
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....r which is challenged before us in this further appeal. 7. Mr. Dada, learned senior counsel appearing for the appellant invited our attention to the facts and submitted that there is an appellate package and if that appellate package is not applicable to the appellant's case as the lis in the case of the appellant commenced in the year 2008, then, the Tribunal's view is patently erroneous and unsustainable. Mr. Dada submits that there is a vested right of appeal and that cannot be curtailed by a subsequent amendment. He would submit that the Tribunal's view and which is to be found in paragraph 9 of the impugned order is manifestly incorrect inasmuch as it did not appreciate the nature of the right vesting in the appellant before this Court, the impact of the amendment to the law. The right is a package, then, that appellate package could not have been destroyed by relying upon a subsequent provision. Mr. Dada would submit that if the vested right could be curtailed by an express enactment or necessary intendment, but in the present case, the explanatory note to clause 98 of the Finance Act of 2015 by which section 35F was amended has been wrongly applied by the Tribun....
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....ce to the power and conferred in the Tribunal vide section 35F as it stood prior to its amendment and post amendment, which read thus : SECTION 35F PRIOR TO AMENDMENT : "SECTION 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 the 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 the 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 the revenue. Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of du....
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....ount payable under rule 6 of the Cenvat Credit Rules, 2001 or the Cenvat Credit Rules, 2002 or the Cenvat Credit Rules, 2004." 11. By the unamended provision it is apparent that where in any appeal under the Chapter in which section 35F falls, the decision or order appealed against relates to any duty demanded in respect of the goods which are not under the control of the 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 the adjudicating authority the duty demanded or the penalty levied. However, by the proviso which is the proviso No.1, the Commissioner (Appeals) or the Appellate Tribunal has discretion and if he or it is of the opinion that the demand of duty or penalty would cause hardship, then, he or it may dispense with such deposit subject to any conditions as he or it may deem fit to impose so as to safeguard the interest of the Revenue. Then, by the second proviso, where an application is filed for dispensing with the deposit of duty demanded or penalty levied, then, the Commissioner (Appeals), wherever it is possible to do so, decide such application w....
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....ion, the argument was that the requirement of pre-deposit in terms of the instructions to deposit seven and a half per cent of the duty and/or penalty should not be entertained. The petitioner before the High Court of Punjab & Haryana relied upon an order passed by a learned single Judge of the Kerala High Court in the case of Muthoot Finance Ltd. vs. Union of India, 2015 (320) ELT 51. The High Court of Punjab & Haryana did not assign any independent reasons, but following this view of the Kerala High Court, directed that the appeal shall not be treated as not maintainable on account of the failure to deposit the amounts as per amended section 35F. The Court did not explain the ambit and scope of this provision. 15. In Muthoot Finance, the petitioner before the single Judge of the High Court of Kerala at Ernakulam challenged an order of confirmation of demand of the service tax and penalty. The petitioner was engaged in the business of lending money and we are not concerned with the merits of that matter. The argument was that there is an alternate remedy available of filing an appeal. However, that could not be entertained unless the appellant/petitioner before the High Court of....
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....then Hon'ble Chief Justice Dr. D.Y. Chandrachud, took up for consideration the challenge. It referred to all the judgments including the one which have been relied upon before us. The Allahabad High Court in paragraphs 9 and 10 considered this larger challenge and after referring to the judgments, some of which have been relied upon by Mr. Dada, held as under : "17. Thus, the principle of law which emerges is that the right of appeal is a vested right and the right to enter a superior Court or Tribunal accrues to a litigant as on and from the date on which the lis commences although it may actually be exercised when the adverse judgment is pronounced. Such a right is governed by the law which prevails on the date of institution of the suit or proceeding and not by the law that prevails at the date of the decision or on the date of the filing of an appeal. Moreover, the vested right of an appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. 18. Justice G.P. Singh in his treatise on Statutory Interpretation has succintly elucidated the principles to be applied in determining whether a statute is retro....
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....at it would apply to all appeals which would be filed on and from the date of the enforcement of Section 35F of the Act. 20. 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 proviso 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 appeals which were pending before any appellate authority prior to the commencement of Finance (No.2) Act, 2014. Consequently, both by virtue of the opening words of Section 35F(1) of the Act as well as by the second proviso to the provision, it is clear that appeals which are filed on and after the enforcement of the amended provision on 6 August 2014 shall be governed by the requirement of pre-deposit as stipulated therein. The only category to which the provision will not apply that would be those where the appeals or, as the case may be, stay appl....
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....ts, including of the Kerala High Court have been extensively referred to. The independent reasoning of the Division Bench of the High Court of Madras is, with respect, rightly construing and interpreting the statutory provision. As held by the Division Bench of the High Court of Madras, the substantive provision section 35F after its amendment, is not capable of any other interpretation. Though the second proviso was referred, but the Division Bench independent thereof, agreed with the contention of the Revenue which is that the amended provision would have to be applied to all such appeals as falling within the second proviso. 23. We also arrive at the same conclusion and, therefore, it is not necessary for us to reproduce each and every paragraph from the judgment of the High Court of Madras. Once we broadly agree with Ms. Cardozo that the prescription as is carved out by section 35F would apply to all such appeals and stay applications as are referred to in the second proviso, then, it is not possible to agree with the appellant's senior counsel. More so, when the order-in-original was challenged in appeal which is filed in this case after 6th August, 2014, and the s....