TaxTMI 
TaxTMI 
2019 (2) TMI 1931
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....ed in the Tribunal on 31 January, 2019 stating therein that it would be submitting an application for waiver of pre-deposit. The appellant did file an Application on 31 January, 2019 containing a prayer that the Tribunal may consider granting unconditional waiver of pre-deposit. Paragraphs 5 and 6 of the Application state the reason as to why the Tribunal may grant an unconditional waiver of pre-deposit and the same are reproduced below: "5. Kind attention is drawn to the Board's Circular No. 984/08/2014-CX dated 16 September, 2014 which clarifies the amendment to the Appeal provisions in Customs, Central Excise and Service Tax made by the Finance Act, 2014. Para 1,2 clearly clarifies "The amended provisions apply to appeal filed after 6 August, 2014, Sections 35F of the Central Excise Act, 1944 and Section 129E of the Customs Act, 1962 contain specific saving clause to state that all pending appeals/ stay application filed till the enactment of the Finance Bill shall be governed by the erstwhile provisions". 6. That Hon'ble High Court of Andhra Pradesh also in the case of M/s K. Rama Mohana Rao & Co. Vs. Union of India Ministry of Finance, New Delhi and 4 Others reported in 20....
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....demanded or penalty imposed before filing the Appeal and it is as follows: "129E. 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, 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 customs lower in rank than the Commissioner of Customs; (ii) against the decision or order referred to in clause (a) of sub-section (1) of section 129E, 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 129E, 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,....
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....he second proviso makes the position absolutely clear as it provides that the provisions of Section 129E shall not apply to Stay Application and Appeals pending before any Appellant Authority prior to the commencement of the Finance Act 2014. In other words, only those Appeals and stay Application which are pending before the Tribunal before 6 August, 2014 would continue to be governed by the old provisions. 11. This is what was observed by a Division Bench of the Allahabad High Court in Ganesh Yadav in which the requirement of deposit of a certain percentage under the amended provisions of Section 35 of the Central Excise Act, 1944 which came into force w.e.f. 6 August, 2014 and which are para materia to Section 129E of the Customs Act came up for interpretation. After upholding the constitutional validity of Section 35F of the Act, the High Court proceeded to examine whether the requirement of pre-deposit would apply to a situation when the show cause notice was issued on 19 September, 2013, prior to the coming into force of the amended provisions of Section 35F of the Central Excise Act on 6 August, 2014. The High Court referred to the Constitution Bench judgment of Supreme Cou....
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....of law which was laid down in the Constitution Bench judgement of the Supreme Court in Garikapatti Veeraya vs. N. Subbiah Choudhury8 would merit reference. Chief Justice Sudhi Ranjan Das speaking for the majority, after considering the law on the subject from the decision of the Privy Council in Colonial Sugar Refining Company Ltd. vs. Irving9 upto Sawaldas Madhavdas vs. Arti Cotton Mills Ltd.10 deduced the following principles of law: "(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (ii) The right of appeal is not a mere matter of procedure but is a substantive right. (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved, to the parties thereto till the rest of the career of the suit. (iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed ....
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....ance (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 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. vs Union of India24. The Kerala High Court has referred to an interim order passed by the Andhra Pradesh High Court in K Rama Mohanarao vs. Union of India25. 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 languag....
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....f the Allahabad High Court in Ganesh Yadav (supra). In other words, the Court is not prepared to reopen the question of the validity of Section 35F of the CE Act. 5. In terms of the amended Section 35F of the CE Act the CESTAT can insist on a mandatory pre-deposit of 7.5%/10% of the demand of duty in respect of all appeals pending as on that date. As far as the present case is concerned, although the initial adjudication order was passed on 23rd December, 2010, that order was set aside by the CESTAT on 13th December, 2011 and the matter remanded to the Commissioner of Customs for a fresh adjudication. In the second round, a fresh adjudication order was passed by the Principal Commissioner on 18th May, 2015. An appeal was then filed by the petitioner before the CESTAT along with an application for stay/waiver of pre-deposit. The further appeal having been filed after the amendment to Section 35F of CE Act would be governed by the said amended provision." 13. Learned consultant for the appellant has, however placed reliance upon a decision of a learned Judge of the Madras High Court in Fifth Avenue Sourcing Pvt. Ltd. which referred to an interim order passed by the Kerala High Cou....