TaxTMI 
TaxTMI 
2016 (9) TMI 676
X X X X Extracts X X X X
X X X X Extracts X X X X
....y judgment dated 04/03/2015, 3rd respondent was directed to re-consider the matter. On remittance, the matter was heard on 23/04/2015. Ext.P4 was passed on 11/05/2015 confirming the demand against the petitioner. Petitioner again challenged the matter before the High Court by filing WP(C) No.17144/2015 which was disposed on 09/06/2015 permitting the petitioner to pursue the alternate remedy of filing an appeal before the 2nd respondent, with permission to seek waiver of the mandatory pre-deposit of 7.5%. Petitioner preferred an appeal before the 2nd respondent without depositing the amount along with an application for stay. In the meantime, revenue preferred an appeal against the judgment dated 09/06/2015 in W.P.C.No.17144/2015. The Division Bench disposed of the appeal as per judgment dated 29/10/2015 setting aside the said judgment and observed that it is for the appellate Tribunal to take a decision in the matter. 3. The Tribunal heard the matter and passed an order dated 17/02/2016 (Ext.P8), holding that Sec.35F would apply to the case of the petitioner irrespective of the fact that the proceedings commenced prior to 06/08/2014, the date on which amendment was brought in fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s a vested right and such a right accrues to the litigant and exists as on and from the date of the lis commences and that such right is to be governed by the law prevailing at the date of institution of suit or proceeding and not at the date of its decision or filing of appeal. 9. Counter affidavit is filed by the respondents 1and 2 in W.P.C.No.10881/2016 wherein they supported the stand taken by the authorities. It is stated that Section 35F of the Act was introduced with effect from 06/08/2014. In cases where duty and penalty are in dispute, the appellants have to deposit 7.5% of the duty or penalty. In the case of an appeal to the Tribunal against an order passed by the Commissioner (Appeals), requirement of pre-deposit is 10%. The first proviso restricts the amount to be deposited to a maximum of Rs. 10 Crores. Prior to the amendment, the Commissioner (Appeals) or the Appellate Tribunal were permitted to dispense with such deposit in cases of undue hardship. It is stated that, stay applications and the issue of whether a case of undue hardship was made out or not, gave rise to endless litigation. It was found that adjudication and disposal of such stay petitions would consu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty 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 Commissioner of Central Excise. (ii) against the decision or order referred to in clause (a) of sub-section (1) of Section 35B, unless the appellant has deposited seven and a half percent 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 sub-section (1) of Section 35B, unless the appellant has deposited ten percent 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, 201....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stice G.P. Singh in his treatise on Statutory Interpretation has succinctly elucidated the principles to be applied in determining whether a statute is retrospective or not, in the following words: "(ii) Statutes dealing with substantive rights.- It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is "deemed to be prospective only 'nova constitutio futuris formam imponere debet non praeteritis [2 c. Int. 392]". In the words of LORD BLANESBURG, "provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment." "Every statute, it has been said", observed LOPES, L.J., "which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he 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 applications were pending before the appellate authority prior to the commencement of Finance (No. 2) Act 2014. 21. Our attention has been drawn to a judgment of the learned Single Judge of the Kerala High Court in Muthoot Finance Ltd. v. Union of India 2015-TIOL-632- HC-KERALA-ST. The Kerala High Court has referred to an interim order passed by the Andhra Pradesh High Court in K Rama Mohanarao v. Union of India MANU/AP/0298/2015 : 2015-TIOL-511-HC-AP-CX. The Kerala High Court while adverting to the interim order referred to the settled law that the institution of a suit carries with it an implication that all rights of appeal then in force are preserved to the parties. With great respect, the judgment of the learned Single Judge of the Kerala High Court has not considered the express language which has been used in the amended provisions of Section 35F (1) of the Act. The order of the Andhra Pradesh High Court which was relied upon in the judgment of the Kerala High Court is only an interim order. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he appeal after the amendment was made in Section 35F of the Central Excise Act. Therefore, the amended provisions would apply and the appeal of the appellant before the CESTAT would not be maintainable in absence of deposit of an amount equivalent to 7.5% of the confirmed amount of duty liability. The other aspect of the matter is that if the argument of the learned counsel for the petitioner is accepted then he is required to pre-deposit 100% of the excise duty levied on him as he has not filed any waiver application under the old provision before the Tribunal exempting him from making any pre-deposit. The Legislature has granted benefit to the assessees by fixing pre-deposit equivalent to 7.5% or 10% of the confirmed amount of duty liability as per the provisions of Section 35F of the Central Excise Act, 1944." 15. Similarly, the Division Bench of Rajastan High Court in Arjun Industries Limited v. Commissioner of Customs, Jaipur [2015 (320) E.L.T 497(Raj.)] considered the same issue and upheld the direction to deposit the amounts specified under Section 35F. 16. The Madras High Court, by judgment in M/s.Dream Castle v. Union of India and Others [2016-TIOL-1009-HC-MAD ST], ....