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2015 (6) TMI 405 - CESTAT MUMBAI

2015 (6) TMI 405 - CESTAT MUMBAI - 2015 (329) E.L.T. 182 (Tri. - Mumbai) - Maintainability 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. .....

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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 .....

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mencement 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. - Application Nos. E/MA(Ors)/93062, E/93507 & 93019/15-Mum, Appeal No. E/85591, 85628, 85629/15-Mum - order N .....

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alty where such penalty is in dispute. The appellants in the present appeals have not deposited the said amount and hence the question of maintainability of the appeals before this Tribunal. 2. The learned counsel for the appellants submits that the amended provisions of Section 35F have come into force with effect from 6th August, 2014. In the present appeals, even though the order-in-original was passed on16.12.2014, i.e. after the coming into force of the said provisions, but the show cause n .....

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) PVt. Ltd. vs. UOI (order dated 24.4.2015) in CWP no. 7696 of 2015) (iv) Hossein Kasam Dada (India) Ltd. vs State of Madhya Pradesh reported in 1983 (13) ELT 1277 (SC); (v) Kerala Transporting Co. vs. CIT (2000 111 TAXMAN 376 Ker); (vi) CIT vs. Smt. G.A. Samanthakamani (2003 259 ITR 215 Mad.); (vii) Samages Pharma Pvt. Ltd. vs. CCE, Guntur reported in 1997 (89) ELT 139 (Tri.) and (viii) Godrej Industries Ltd. vs. CCE, Mumbai - II (Central Excise Appeal No. 291 of 2013 - in the high court of Jud .....

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tion and is in the nature of interim reliefs. None of these judgments have examined and decided the issue. It was further submitted that most of the judgments quoted by the learned counsel are based upon the judgment of the Hon'ble Supreme Court in the case of Hossein Kasam Dada (India) Ltd. (supra) and a perusal of para 10 of the said judgment would indicate that the Hon'ble Supreme Court has observed that the pre-existing right of appeal is not destroyed by the amendment if the amendme .....

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ations and appeals filed after the date of coming into force of the said provisions. The period of dispute, date of issuing the order-in-original/order-in-appeal or show cause notice are not relevant. It was further submitted that this Tribunal in the case of Shridhar Metal vide order No. M/1618/15/EB dated 5.3.2015, has analysed the issue in detail and has come to the conclusion that the new provisions shall be applicable in all the appeals filed after the enactment of the said provisions. The .....

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since the new Section 35F, has been substituted in place of the old Section 35F, the new Section has to be treated as if the altered words have been written into the earlier Act with pen and ink and the old words scored out so that there is no need to refer to the amending Act at all. He further submitted that in view of the said position, the amended Section 35F has to be applied in the present case. It was also submitted that even in the old Section, the appellants had no right to force the T .....

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2014 Section 35F. Deposit, pending appeal, of duty demanded or penalty levied.- Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of central excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where .....

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with the deposit of duty 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. Explanation. - For the purposes of this section "duty demanded" shall include, - (i) amount determined under section 11D; (ii) amount of erroneous CENVAT credit taken; (iii) amount payable under rule 57CC of Central Excise Rules, 1944; (iv) amount payable under rule 6 of CEN .....

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se 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 Central Excise lower in rank than the Principal Commissioner of Central Excise or Commissioner of Central Excise; (ii) against the decision or order referred to in clause (a) of sub-section (1) of section 35B, 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 .....

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d rupees ten crores: Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No.2) Act, 2014. Explanation. - For the purposes of this section "duty demanded shall include,- (i) amount determined under section 11D; (ii) amount of erroneous Cenvat credit taken; (iv) amount payable under rule 6 of the Cenvat Credit Rules, 2001 or the Cenvat Credit Rules, 2002 or th .....

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icular case, the Tribunal is of the opinion that the deposit of the duty demanded or penalty levied would cause undue hardship to such person, the Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the interests of revenue. Thus, only in the cases where the Tribunal was of the opinion that the deposit of duty demanded or penalty levied would cause undue hardship, the Tribunal had discretionary power to dispense with such deposit sub .....

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d incases of undue hardship was done away with; (iii) that the second proviso to the new sub-section makes it very clear that the provisions of this Section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No.2) Act, 2014. This proviso implies that the provisions of the said section will apply to all the stay applications and appeals filed before any appellate authority after the commencement of the Finance (No. .....

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efore the Appellate Authorities prior to the enactment of the Bill." Thus the objective of the amendment clearly indicates that amount of 7.5% or 10% as the case may be, is required to be deposited before filing the appeal. 4.3 We also note that it is the practice in the Ministry of Finance to issue a letter at the time of introduction of Finance Bills wherein various provisions are explained in the form of D.O. letter to the Field Formation. J.S/TRU vide DOF No. 334/15/2014-TRU dated 10.7. .....

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om the above TRU's letter, it becomes clear that the intention of the legislature is that the deposit of 7.5% or 10% is mandatorily required for filing appeal. Therefore objective and purpose of amended provision 35 F is to make deposit of 7.5% or 10% for filing of appeal in this Tribunal. 4.4 We have also perused the Board Circular No. 984/08/2014-CX dated 16.9.2014, which in para 1.2 clarifies:- "1.2 The amended provisions apply to appeals filed after 6th August 2014. Section 35F of t .....

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li v. Dolimuddin (supra), namely, that after the amendment the Court had no authority to entertain an appeal without a certificate from the Single Judge. Rankin C.J., repelled this argument with the remark at p. 643: "Unless the contrary can be shown, the provision which takes away jurisdiction is itself "subject to the implied saving of the litigants' right." In our view the above observation is apposite and applies to the case before us. The true implication of the above obs .....

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ing 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 p .....

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by express words or necessary intendment. In the case before hand, as observed earlier, even in the earlier provisions the right of appeal was subject to deposit of the entire amount of duty and penalty while in the new provisions it is subject to deposit of 7.5% of the duty or penalty. Thus, the amended provisions are in fact more favourable to the appellant-assessees. Further, all that has been done is to take away the discretionary power of the tribunal to waive the requirement of deposit in .....

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uthority prior to the commencement of the Finance (No.2) Act, 2014 which in turn would imply that in respect of the stay applications and appeals filed before any appellate authority after the commencement of the Finance (No. 2) Act, 2014 the new provisions will apply irrespective of the date when the order-in-original/order-in-appeal or the show cause notice was issued or the period of dispute. 6. The learned counsel has quoted the order of the Hon'ble High Court for the State of Telangana .....

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he fact that this is an interim order and no final judgment on the retroactivity of Section 35F has been taken by the Hon'ble High Court, in our view, this will not help the cause of the appellant. This Tribunal is the creature of the Customs Act/Central Excise Act and cannot go into the issues as are being agitated before the Hon'ble High Court. Similarly, we find in the case of A.M. Motors (supra) , the Hon'ble High Court of Karnataka has passed the order in a writ petition and has .....

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o argue that the language of the second proviso to new Section 35F makes it very clear that the amended provisions will apply to all the stay applications and appeals filed after the commencement of the Finance (no.2) Act, 2014. We have also gone through the judgments relating to income tax in the case of Kerala Transporting CO. (supra) and Smt. G.A. Samanthamakani (supra). Both the cases are relating to income tax and the amendments therein are not pari material with the amendment made in Secti .....

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xt that this Tribunal has taken the said view and the said judgment has no application to the facts of the present case. Even in the said judgment, it has been observed that the amendment would not be retrospective in its operation so as to curtail, abrogate or take away the pre-existed statutorily vested substantive right of appeal unless the legislature either expressly or by necessary implication unambiguously intended so. In the present case, we have already come to the conclusion that the l .....

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