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2015 (6) TMI 405 - AT - Central ExciseMaintainability of appeal - Mandatory pre deposit - Held that:- Pre-existing right of appeal is not destroyed by the amendment if the amendment is not made retrospective by express words or necessary intendment. The fact that the pre-existing right of appeal continues to exist must, in its turn, necessarily imply that the old law which created that right of appeal must also exist to support the continuation of that right. As the old law continues to exist for the purpose of supporting the pre-existing right of appeal that old law must govern the exercise and enforcement of that right of appeal and there can then be no question of the amended provision preventing the exercise of that right. The argument that the authority has no option or jurisdiction to admit the appeal unless it be accompanied by the deposit of the assessed tax as required by the amended proviso to Section 22(1) of the Act overlooks the fact of existence of the old law for the purpose of supporting the pre-existing right and really amounts to begging the question. The new proviso is wholly inapplicable in such a situation and the jurisdiction of the authority has to be exercised under the old law which so continues to exist. Legislature has by implication made retrospective amendment. The learned counsel has also quoted the judgment of the Hon'ble High Court of Bombay in the case of Godrej Industries Ltd.(2014 (10) TMI 447 - BOMBAY HIGH COURT) dated 7th October 2014. We have gone through the said judgment. The facts of the case are entirely different. It was relating to the interest provisions under Section 11DD and is in respect of a period when there was no provision for interest. The facts in the present case are entirely different and we do not find application of the said case law. - Second proviso to amended Section 35F makes it very clear that the pending stay applications and appeals as on the date of commencement of the Finance (No.2) Act, 2014 will be governed by the old Section 35F and by implication, the substituted Section 35F will be applicable to all the appeals filed after the commencement of the Finance (No.2) Act, 2014. In view of the said position, we do not consider it necessary to go into the point made by the learned AR. - Appeal not maintainable - Decided against assessee.
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