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2015 (12) TMI 1498 - HC - Service TaxWaiver of pre deposit - Section 35F - whether the amended provisions of Section 35F of the Central Excise Act, 1994, would be applicable or the unamended provisions of Section 35F of the Central Excise Act, 1994, would be applicale and what are the requirements to be fulfilled under the required provision - Overriding Commission - Held that:- As per the decision of the Hon 'ble Supreme Court, in the case of Garikapatti Veeraya v. N.Subbaiah Choudhry and others [1957 (2) TMI 54 - SUPREME COURT], the right of appeal is to be governed by the law prevailing at the date of institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of filing of the appeal. - Thus, it is clear that the law applicable to the case of the assessee is the unamended provision of Section 35F of the Act, As the assessee was of the strong view that, the assessee has a better case on the issue of liability and perhaps carried away by this view, it did not raise the issue regarding the financial hardship. However, the Tribunal is expected to exercise its discretion, vested under the unamended provisions of Section 35F of the Act. In this case, there is a failure to exercise the discretion, as the Tribunal had lost sight of the provision applicable to the case, having regard to the date of filing of the appeal. When the Tribunal had failed to exercise the discretion, this Court is bound to interfere. Further, the order passed by the Tribunal did not indicate that, it has considered the materials to come to a prima facie conclusion. Hence, the order is liable to be set-aside, as the order had been passed, invoking the amended provisions of Section 35F of the Act, whereas the law applicable to the case of the assessee is proviso to unamended Section 35F of the Act. - Matter remanded back - Decided in favour of assessee.
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