2023 (6) TMI 790

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....ts' Writ Petition, i.e. WPMS No. 2739 of 2022, on the ground that the order impugned in the Writ Petition, i.e. the Adjudication Order No. 35/COMMR/DDN/2022 dated 30.06.2022 passed by the Commissioner, CGST, Dehradun is an appealable order under Section 35 of the Finance Act, 1994. 2. We may observe that the order impugned in the Writ Petition, having been passed by the Commissioner, an appeal is maintainable against it before the Tribunal, under Section 35B of the Central Excise Act, 1944. 3. The submission of learned counsel for the appellants is that a Writ Petition was maintainable, since according to the appellants, the Commissioner had no jurisdiction to pass the order impugned in the Writ Petition. This plea is premised on the ....

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....ed, accrued or incurred under the amended Act or repealed Acts or orders under such repealed or amended Acts: Provided that any tax exemption granted as an incentive against investment through a notification shall not continue as privilege if the said notification is rescinded on or after the appointed day; or (d) affect any duty, tax, surcharge, fine, penalty, interest as are due or may become due or any forfeiture or punishment incurred or inflicted in respect of any offence or violation committed against the provisions of the amended Act or repealed Acts; or (e) affect any investigation, inquiry, verification (including scrutiny and audit), assessment proceedings, adjudication and any other legal proceedings or....

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....said repeal on 01.07.2017. The submission of the appellants is that, in respect of the period when the Service Tax regime was in force, the proceedings should have been initiated prior to the repeal of the Service Tax regime on 01.07.2017, and that they could not be initiated after the said repeal. It is argued that only such proceedings which had been initiated prior to 01.07.2017, could be continued. However, fresh proceedings could not have been initiated-if not already initiated post 01.07.2017, after 01.07.2017. 5. The aforesaid submission of the appellants is clearly misconceived in our view. This is evident from a plain reading of Section 174(2), which, despite the repeal and amendment of the Finance Act, 1994, saved the previous ....

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....should have taken place before 01.07.2017, needs only to be noted to be rejected. The saving clause (e) expressly permits the institution of the proceedings or remedy despite the amendment/ repeal. 7. If the liability of the assessee survived in respect of the taxing laws in force prior to its repeal/ amendment even after such repeal/ amendment, it does not stand to reason that the machinery for fixation and realization of such liability would not be available to the State. 8. A similar submission, as raised by the appellants, has been rejected by several High Courts, including the Delhi High Court in Vianaar Homes Private Limited v. Assistant Commissioner (Circle-12), Central Goods & Services Tax, Audit-II, Delhi & Ors., (W.P.(C) 224....