TaxTMI 
TaxTMI 
2018 (11) TMI 522
X X X X Extracts X X X X
X X X X Extracts X X X X
....rtiorari to quash the impugned order dated 11.01.2018 (Annexure P-1) passed by the Customs Excise and Service Tax Appellate Tribunal ((hereinafter known as "the Tribunal"). The petitioner is a trust engaged in promoting educational activities and faced a demand after an elaborative investigation into the evasion of service tax. An order was passed forming service tax demand under the proviso to Section 73(1) of the Act under the category 'commercial training and coaching services' which was confirmed and an assessment framed defining the principal demand with interest and penalty under Sections 76, 77 and 78 of the Finance Act, 1994. Aggrieved against this order, the petitioner filed an appeal along with stay application before respondent No.3. An order was then passed on 11.01.2018 by respondent no.3 refusing to entertain the said application of the petitioner and while doing so, the Tribunal relied on its earlier precedent in the case of Dunar Foods Limited Vs. CCE Ludhiana, decided on 20.06.2017/04.12.2017. The petitioner is aggrieved of this order and since it is brief in content, we deem it appropriate to set it down here below:- "This matter is liste....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al or revision, shall be final. (4) No appeal shall be entertained, unless it is filed within a period of thirty days from the date of communication of the order appealed against. (5) No appeal shall be entertained, unless such appeal is accompanied by satisfactory proof of the prior minimum payment of twenty-five per cent of the total amount of tax, penalty and interest, if any. (7) In deciding an appeal, the appellate authority, after affording an opportunity of being heard to the parties, shall make an order - (a) affirming or amending or canceling the assessment or the order under appeal; or (b) may pass such order, as it deems to be just and proper. (8) The appellate authority shall pass a speaking order while deciding an appeal and send copies of the order to the appellant and the officer whose order was a subject matter of appeal. Section 35F. Deposit of certain percentage of duty demanded or penalty imposed before filling appeal. - The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal, -(i) under sub-section (1) of section 35, unless the appellant has deposited seven and a half per cent. of the duty in case where duty or ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d essentially be held that the power to grant interim injunction/protection is embedded in Section 62(5) of the PVAT Act. Instead of rushing to the High Court under Article 226 of the Constitution of India, the grievance can be remedied at the stage of first appellate authority." Similarly, reliance was placed on another judgment rendered by Division Bench of this Court in Maruti Suzuki India Limited Vs. Union of India bearing CWP No.12922 of 2014 where this Court while placing reliance upon Punjab State Power Corporation's case observed as follows:- "23. The other argument of the Ld. Counsel for the respondent that the decision of Hon'ble the Supreme Court in Narayan Chandra Ghosh's case (supra) having not been considered in PSPCL case, hence that judgment in PCPL case is per incuriam also does not appear to be well founded. In Narayan Chandra Ghosh's case (supra) the vires of the provisions regarding predeposit was not in issue. Also the argument that in an appropriate case, on strong prima facie case being shown, the Appellate Forum may reduce or waive the pre-deposit amount was neither raised nor considered. Hence, that case cannot be relied on for the propositi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eteritis [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 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) Parliament while substituting the provisions of Section 35F of the Central Excise Act, 1944....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pose so as to safeguard the interests of revenue; Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty and interest demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so decide such application within thirty days from the date of its filing." Amended "129-E. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal - The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal - (i) under sub-section (1) of section 128, unless the appellant has deposited seven and a half per cent of the duty demanded or penalty imposed or both, in pursuance of a decision or an order passed by an officer of customs lower in rank than the Commissioner of Customs; (ii) against the decision or order referred to in clause (a) of subsection (1) of section 129-A, unless the appellant has deposited seven and a half per cent of the duty demanded or penalty imposed or both, in pursuance of the decision or order appealed against; (iii) against the decision or order refer....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... amendment, namely speedy disposal of the appeals before the appellate authorities is a laudable object and cannot be overlooked, so as to label the provision as unreasonable and onerous and violative of Article 14 of the Constitution. Secondly that the amount which is required to be deposited is not unreasonable from what the earlier (pre amended) regime provided. 12. The contention of the petitioner that the provision is rendered discriminatory as it creates two different classes when it mandates pre-deposit of duty demanded or penalty imposed or both, and more particularly when penalty cannot be considered to be a revenue as it is not a tax requiring it to be safeguarded, also cannot be accepted. It may be pointed out that even the pre-amended provision stipulated for a deposit in case of appeals from orders levying penalty. This submission of the petitioners also cannot be accepted considering the decision of the Supreme Court in "Vijay Prakash D.Mehta and Jawahar D.Mehta Vs. Collector of Customs (Preventive), Bombay", AIR 1988 SC 2010 which lays down that right to appeal is a statutory right and not an absolute right, which can be circumscribed by the conditions in th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ase of Maruti Suzuki India Limited (supra), the Court dealt with the provisions of Section 45-AA of the Employees State Insurance Act, 1948 (hereinafter known as "1948 Act") which are extracted herein below:- 45AA. Appellate authority.-If an employer is not satisfied with the order referred to in section 45A, he may prefer an appeal to an appellate authority as may be provided by regulation, within sixty days of the date of such order after depositing twenty-five per cent. of the contribution so ordered or the contribution as per his own calculation, whichever is higher, with the Corporation: Provided that if the employer finally succeeds in the appeal, the Corporation shall refund such deposit to the employer together with such interest as may be specified in the regulation." The aforesaid also reflects the satisfaction to be recorded by the Appellate Authority regarding the deposit and is sufficience but in Section 35F of the Act, no window has been provided to the assessee. That apart, we notice that the Tribunal has placed reliance on Dunar Foods Limited's case (supra) which is a decision rendered by the Tribunal itself, wherein it initially invited a d....