TaxTMI 
TaxTMI 
2017 (4) TMI 894
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....ay be entertained and disposed of on merits. In support, he placed reliance on the following judgments:- (i) Fifth Avenue Sourcing (P) Ltd. vs. CST 2015 (40) STR 71 (Mad.) (ii) Garikapatti Veeraya vs. Subbaih Choudhury AIR 1957 SC 540 (iii) Indira Sohanlal vs. Custodian of Evacuee Property AIR 1956 SC 77. (iv) Hoosein Kasam Dada (India) Ltd. vs. The State of Madhya Pradesh AIR 1953 SC 221. (v) The Deputy Commercial Tax Officer vs. Cameo Exports 2006 (3) CTC 81J. In view of the above judgments, he submits that right of appeal accrues on the date of initiation of the assessment proceedings. Therefore the law prevailing on that date shall be relevant and not law on the date of its decision or the date of filing of appeal. Therefore, in this case the mandatory deposit of 7.5% is not applicable. 3. Shri Ashutosh Nath, Asstt. Commissioner (AR) appearing for the revenue submits that the pre-deposit of 7.5% is the requirement for filing appeal before this Tribunal which became effective from the enactment of the Finance Bill, 2014. Therefore, the initiation of the proceeding is not relevant for the purpose of mandatory pre-deposit of 7.5%. In support he placed reliance on the f....
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....) amount of erroneous Cenvat credit taken; (iii) amount payable under rule 6 of the Cenvat Credit Rules, 2001 or the Cenvat Credit Rules, 2002 or the Cenvat Credit Rules, 2004." 5. From a plain reading of the aforesaid Section 35F, it is clear that the pre-deposit of 7.5% is pre-requisite for filing appeal in this Tribunal and it is not related to proceedings of the appeal. Therefore, deposit of 7.5% is requirement for filing the appeal before this Tribunal. Therefore, the submission of ld. counsel that it is to be taken from the date of initiation of the proceedings is absolutely irrelevant. If the legislators have any intention not to collect 7.5% in cases where the proceedings have been initiated prior to enactment of Finance Bill, 2014, the same would have been incorporated in amended Section 35F explicitly. In the absence of such explicit provision, there is no scope for interpretation that the 7.5% is required only in cases wherein the proceedings have been initiated on or after the amended section 35F in the Finance Bill, 2014. On the same issue, the Jurisdictional High Court in the case of Nimbus Communications Ltd. (supra) clearly held that as per amended section 35F th....
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....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 sub-section (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 sub-section (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 ....
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.... against. However, the first proviso makes it clear that the amount required to be deposited under this section shall not exceed rupees ten crores and the second proviso is very important for our purpose. It states 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 Act No. 2 of 2014. It is common ground that the date of the commencement of this Finance Act is 6th August, 2014. It is further common ground that Section 35B provides for appeals to the Appellate Tribunal whereas by Section 35F what is contemplated is deposit of certain duty demanded or penalty imposed before filing appeal. By Section 35F as amended, the Tribunal or the Commissioner, as the case may be, shall not entertain any appeal unless compliance is made of the above condition. 13.Although the second proviso clarifies and amply that the section itself will not apply to the stay application and pending appeals before any appellate authority prior to the commencement of the Finance Act No. 2 of 2014, it is urged by Mr. Dada that an appellate package flowing from Section 35B cannot be interfered with....
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....ent here also is that the lis commenced even before the show cause notice was issued which, in any event, was issued in the year 2012, but there was three and a half year time lag in its adjudication. It is no fault of the appellant and that is why the governing law would be the one which was prevailing at the date of commencement of the lis and not the one which was sought to be applied by the Tribunal. 17.This view is consistently taken by the Hon'ble Supreme Court in the case of an appeal guaranteed by Section 96 of the Code of Civil Procedure. That is an appeal to challenge an original decree and judgment of the Trial Court in a suit. As far as that is concerned, the Hon'ble Supreme Court clarified that the law applicable on the date of commencement of the lis would be the governing law and would continue to govern even the vested right of appeal guaranteed by Section 96 of the Code of Civil Procedure. 18.As against this, we have a view which has been taken by the Division Bench of the Allahabad High Court. In the case of Ganesh Yadav, the service tax demand confirmed by the Additional Commissioner, Central Excise, Customs and Service Tax, Allahabad, was sought to be impugn....
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....y 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 imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect . As a logical corollary of the general rule, that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, there is a subordinate rule to the effect that a statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary. In other words close attention must be paid to the language of the statutory provision for determining the scope of the retrospectivity intended by Parliament." (emphasis supplied) 19. Parliament while substituting the provisions of Section 35F of the Central Excise Act, 1944 by Finance Act (No. 2) of 2014, has laid down that the Tribunal or the Commissioner (Appeals) shall not entertain any appeal unless the appellant has deposited the duty or, as the case may be, a penalty to the stipulated extent. These words in ....
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....ment with the view of the Kerala High Court. The Division Bench held that the express language of the amended provisions of Section 35F(1), particularly the provisos cannot be ignored. 21. Having perused this judgment of the Division Bench and its reasoning, we are clear that Section 35F cannot be held to be unconstitutional. Section 35F only ensures that the appeal shall not be entertained unless the amount to the extent mentioned therein is secured. The interest of the Revenue which has to be secured was the paramount consideration in both the unamended and amended provision. Now there is a specific stipulation and the extent to which the interest of the Revenue has to be secured is also clarified. Once there is a clear indication from the language of the Statute and which is plain and unambiguous, then, we do not think that the view taken by the Kerala High Court can be accepted. We would prefer to agree with the Hon'ble Division Bench of the Allahabad High Court in Ganesh Yadav (supra). This is not a case where the principle in Garikapatti Veeraya (supra) relied upon by Mr. Dada can be applied and for the reasons which have been assigned by the Allahabad High Court. 22. The....