TMI Blog2015 (7) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... cator that Parliament has exempted the requirement of complying with the pre-deposit as mandated by Section 35F (1) of the Act as amended only in the case of those stay applications and appeals which were pending before any appellate authority prior to the commencement of Finance (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. Petitioner would not be justified in urging that the amended provisions of Section 35F(1) of the Act would not apply merely on the ground that the notice to show cause was issued prior to the enforcement of Finance (No.2) Act, 2014. We find no merit in the constitutional challenge - Decided against assessee. - WRIT - C No. - 33950 of 2015 - - - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35B, unless the appellant has deposited ten percent 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: Provided that the amount required to be deposited under this section shall not exceed 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; (iii) amount payable under rule 6 of the Cenvat Credit Rules, 2001 or the Cenvat Credit Rules, 2002 or the Cenvat Credit Rules, 2004. Prior to the amendment of Section 35F of the Act, the provision as it stood earlier, was as follows: 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 exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , is that the condition which is prescribed should not be so onerous so as to restrict or abrogate the right of appeal altogether. A condition which is unduly onerous will render the right of appeal illusory and would hence run the risk of being held to be arbitrary and of being violative of the fundamental right conferred by Article 14 of Constitution. In Elora Construction Company vs. Municipal Corporation of Greater Bombay AIR 1980 Bombay 162, Hon'ble Mr. Justice S.P. Bharucha, as his Lordship then was, upheld the requirement of a pre-deposit under the provisions of Section 217 of the Bombay Municipal Corporation Act, 1888. The decision in Elora Construction (supra) has been followed in several judgments of the Supreme Court subsequently to which a reference would be shortly made. In Anant Mills Company Ltd. vs. State of Gujarat (1975) 2 SCC 175, the Supreme Court held that the right of appeal is a creature of the statute and it is for the legislature to determine whether that right should be given unconditionally to an aggrieved individual or should be allowed subject to condition. In Vijay Prakash D. Mehta vs. Collector of Customs (1988) 4 SCC 402, the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se to endless litigation. There would be orders of remand in the litigative proceedings. All this was liable to result in a situation where the disposal of stay applications would consume the adjudicatory time and resources of the Tribunal or, as the case may be, of the Commissioner (Appeals). Parliament has stepped in by providing a requirement of a deposit of 7.5% in the case of a First Appellate remedy before the Commissioner (Appeals) or to the Tribunal. The requirement of a deposit of 10% is in the case of an appeal to the Tribunal against an order of the Commissioner (Appeals). This requirement cannot be regarded or held as being arbitrary or as violative of Article 14. Above all, as the Supreme Court held in Shyam Kishore (supra), the High Court under Article 226 of the Constitution is vested with the jurisdiction in an appropriate case to dispense with the requirement of pre-deposit and the power of the Court under Article 226 is not taken away. This was also held by the Supreme Court in P. Laxmi Devi (supra) in which the Supreme Court observed that recourse to the writ jurisdiction would not be ousted in an appropriate case. Whether the writ jurisdiction under Article 226 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise. (emphasis supplied) This principle was also laid down in an earlier decision in Hoosein Kasam Dada (India) Ltd. Vs. State of Madhya Pradesh AIR 1953 SCC 221, where it was held as follows: ...The true implication of the above observation as of the decisions in the other cases referred to above is that the 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. (emphasis supplied) In Jose Da Costa and another vs. Bascora Sadasiva Sinai Narcornim and others (1976) 2 SCC 917, the Supreme Court held as under: 31. Before ascertaining the effect of the enactments aforesaid passed by the Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 7 SCC 613 9.The validity of Section 100-A C.P.C. has been upheld by the decision of this Court in Salem Advocate Bar Assn. v. Union of India.17 The Full Benches of the Andhra Pradesh High Court vide Gandla Pannala Bhulaxmi v. A.P. SRTC AIR 2003 AP 458, the Madhya Pradesh High Court in Laxminarayan v. Shivlal Gujar AIR 2003 MP 49, and of the Kerala High Court in Kesava Pillai Sreedharan Pillai v. State of Kerala AIR 2004 Ker 111 have held that after the amendment of Section 100-A in 2002 no litigant can have a substantive right for a further appeal against the judgment or order of a learned Single Judge of the High Court passed in an appeal. We respectfully agree with the aforesaid decisions. A Full Bench of this Court in Pratap Narain Agarwal vs. Ram Narain Agarwal and others AIR 1980 Alld. 42 recognised the power of the legislature to enact a law taking away a vested right of appeal. The Court held that right of appeal against rejection of objections under Section 47 CPC would stand impaired retrospectively, except in cases where execution applications stood decided or appeals were pending on the date of commencement of the Civil Procedure Code (Amendment) Act, 1976, in v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law taking away the vested right of appeal by making a provision to that effect or by expressing an intention to the contrary. 18. An appellate jurisdiction is the authority of a superior Court to review, reverse, correct or affirm the decisions of an inferior Court. An appeal is considered as continuation of the original suit rather (than) as the inception of a new action. A litigant may have a right to institute a suit unless specifically barred, but there is no right of appeal unless conferred. For filing a suit right is not required to be conferred by any statute whereas since the right of appeal is the right from the statutory provision by which it is created, such a right has got to be conferred. It does not inhere in a litigant. The right of appeal conferred or acquired has to be exercised only in the manner prescribed. 19. As already pointed out above, the legislature has authority to abridge a right to appeal at its discretion. The legislature may take away the right of appeal. (emphasis supplied) Thus, the principle of law which emerges is that the right of appeal is a vested right and the right to enter a superior Court or Tribunal accrues to a litigant as o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Parliament while substituting the provisions of Section 35F of the Central Excise Act, 1944 by Finance Act (No.2) of 2014, has laid down that the Tribunal or the Commissioner (Appeals) shall not entertain any appeal unless the appellant has deposited the duty or, as the case may be, a penalty to the stipulated extent. These words in Section 35F of the Act would indicate that on and after the enforcement of the provision of Section 35F of the Act, as amended, an appellant has to deposit the duty and penalty as stipulated and unless the appellant were to do so, the Tribunal shall not entertain any appeal. This provision would, therefore, indicate that it would apply to all appeals which would be filed on and from the date of the enforcement of Section 35F of the Act. The intendment of Section 35F of the Act is further clarified by the second proviso which stipulates that the provisions of the section shall not apply to stay applications and appeals which were pending before any appellate authority prior to the commencement of Finance (No.2) Act 2014. The second proviso is a clear indicator that Parliament has exempted the requirement of complying with the pre-deposit as man ..... X X X X Extracts X X X X X X X X Extracts X X X X
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