GST Helpdesk   Subscription   Demo   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
What's New Case Laws Highlights Articles News Forum Short Notes Statutory TMI SMS More ...
Extracts
Home List
← Previous Next →

2015 (7) TMI 304 - ALLAHABAD HIGH COURT

2015 (7) TMI 304 - ALLAHABAD HIGH COURT - 2015 (320) E.L.T. 711 (All.) , 2015 (39) S.T.R. 177 (All.) , [2016] 88 VST 98 (All) - Waiver of pre-deposit - Effective date of amendment to Section 35F - mandatory pre-deposit - Recovery of demand u/s 73 - penalty under Sections 70, 76, 77 and 78 - Section 35F - Held that:- right of appeal is a vested right and the right to enter a superior Court or Tribunal accrues to a litigant as on and from the date on which the lis commences although it may actuall .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 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 Se .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 - Dated:- 29-5-2015 - Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, CJ And Hon'ble Manoj Kumar Gupta,JJ. For the Petitioner : Vanashri Dubey For the R .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s providing a taxable service for which it was not registered. The amount was demanded and stated to be recoverable under the proviso to Section 73(1) of the Finance Act, 1994 together with interest and penalty. In the course of the adjudication proceedings, an order was passed on 31 March 2015 by the Additional Commissioner, Central Excise, Customs and Service Tax, Allahabad, confirming the demand of service tax in the amount of ₹ 34.02 lacs. This was accompanied by a penalty under Sectio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he appellant has deposited seven and a half 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 a decision or an order passed by an officer of Central Excise lower in rank than the 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 percent of the duty, in case where duty or duty and pe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tion 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 Cenva .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

gainst such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

; (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 CENVAT Credit Rules, 2001 or CENVAT Credit Rules, 2002 or CENVAT Credit Rules, 2004; (v) interest payable under the provisions of this Act or the rules made thereunder." The petitioner has sought in these proceedings a writ restraining the respondents from enforcing the mandatory requirement of a pre-deposit of 7.5% of the duty demanded in p .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n to the legislature which confers a remedy of an appeal to condition the appeal subject to compliance with conditions. A fiscal legislation can stipulate a requirement of pre-deposit as a condition precedent to an appeal to be entertained. The restraint on the power of the legislature to do so, 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 illuso .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

veral 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 held that t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Bombay High Court was cited with approval in the judgment of the Supreme Court in Gujarat Agro Industries (supra) and in a subsequent decision in Shyam Kishore vs. Municipal Corporation of Delhi (1993) 1 SCC 22. The judgment in Gujarat Agro Industries (supra) involved a challenge to Section 406(e) of the Bombay Municipal Corporation Act as applicable in Gujarat which requires the deposit of tax as a pre-condition for entertaining an appeal. A limited waiver of tax was contemplated which was hel .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ly valid. Parliament while amending the provisions of Section 35F of the Act has required the payment of 7.5 percent of the duty in case the duty and penalty are in dispute or the penalty where such penalty is in dispute. In the case of an appeal to the Tribunal against an order passed by the Commissioner (Appeals), the requirement of deposit is 10% of the duty or as the case may be, the duty or penalty or of the penalty where the penalty is in dispute. The first proviso restricts the amount to .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n 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 re .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ousted in an appropriate case. Whether the writ jurisdiction under Article 226 should be exercised, having due regard to the discipline which has been laid down under Section 35F of the Act, is a separate matter altogether but it is important to note that the power under Section 226 has not been, as it cannot be, abridged. That leads the Court to the next aspect of the matter as to whether the requirement of pre-deposit would apply in a situation such as the present. The notice to show cause wa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s. N. Subbiah Choudhury AIR 1957 SC 540 would merit reference. Chief Justice Sudhi Ranjan Das speaking for the majority, after considering the law on the subject from the decision of the Privy Council in Colonial Sugar Refining Company Ltd. vs. Irving (1905) AC 369 upto Sawaldas Madhavdas vs. Arti Cotton Mills Ltd. AIR 1955 Bom. 332 deduced the following principles of law: "(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ate the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. (v)This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise." (emphasis supplied) Th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ist 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 Sadasiv .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ch touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment (see Delhi Cloth and General Mills Co. Ltd. v. Income-tax Commissioner 54 IA 421 : AIR 1927 PC 242 ). The second is that a right of appeal being a substantive right the institution of a suit carries with it the implication that all successive appeals available under the law then in force would be preserved to the parties to the suit through .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

a Devi and others AIR 1996 SC 1560, the Supreme Court observed as follows: "344. In all these decisions the view taken is that unless the New Act expressly or by necessary implication makes the provision applicable retrospectively, the right to appeal will crystalize in the appellant on the institution of the application in the Tribunal of first instance and that vested right of appeal would not be dislodged by the enactment of the new Act..." (emphasis supplied) The Supreme Court in M .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ment vide Kamal Kumar Dutta v. Ruby General Hospital Ltd. (2006) 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 hav .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

peal 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 view of the saving clause. It was held that even in cases where execution applications were pending on the date the Amending Act came, the right to appeal was not saved. It is held as under: "24. In the instant case, admittedly, the a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

appeals at the time of enforcement of the Act had been saved under it, but it does not appear correct that in all pending execution applications the right to appeal is preserved even in respect of a pending application on the date of enforcement of the said Act. The language of S. 97 (2) (a) does not permit such an interpretation. Under this clause, the amendment made in S. 2(2) of the principal Act does not affect any appeal against the determination of any question as is referred to in S. 47. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

;17. Now the question for enquiry is whether there is anything in Act 104 of 1976 demonstrating that the right to file appeal which accrued on the date of filing of the execution application was taken away. True it is as said in Hough v. Windus (supra), the statutes should be interpreted if possible, so as to respect vested rights. It is also correct at the same time that the golden rule of construction is that, in the absence of anything in the enactment to show that law should have retrospecti .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

uit 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 manne .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

right is governed by the law which prevails on the date of institution of the suit or proceeding and not by the law that prevails at the date of the decision or on the date of the filing of an appeal. Moreover, the vested right of an appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. Justice G.P. Singh in his treatise on Statutory Interpretation23 has succintly elucidated the principles to be applied in determining .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ient to show the intention of the Legislature to affect existing rights, it is "deemed to be prospective only 'nova constitutio futuris formam imponere debet non praeteritis [2 c. Int. 392]". In the words of LORD BLANESBURG, "provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment." "Every statute, it has been said", observed LOPES, L.J., "whi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary. In other words close attention must be paid to the language of the statutory provision for determining the scope of the retrospectivity intended by Parliament." (emphasis supplied) 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) &quo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ll 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-d .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

Advanced Search


Latest Notifications:

    Dated      Category

20-7-2017 Cus (NT)

20-7-2017 GST CESS Rate

19-7-2017 IT

19-7-2017 IT

18-7-2017 IT

18-7-2017 CE (NT)

18-7-2017 CE

18-7-2017 GST CESS Rate

15-7-2017 Kerala SGST

14-7-2017 Andhra Pradesh SGST

14-7-2017 Cus (NT)

14-7-2017 Cus

13-7-2017 Co. Law

13-7-2017 Co. Law

13-7-2017 ADD

13-7-2017 ADD

12-7-2017 Jammu & Kashmir SGST

12-7-2017 Gujarat SGST

12-7-2017 Gujarat SGST

12-7-2017 CGST Rate

More Notifications


Latest Circulars:

21-7-2017 Goods and Services Tax

20-7-2017 Goods and Services Tax

20-7-2017 Goods and Services Tax

19-7-2017 Goods and Services Tax

19-7-2017 Income Tax

18-7-2017 Customs

17-7-2017 Customs

14-7-2017 Income Tax

13-7-2017 Central Excise

13-7-2017 Customs

More Circulars



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version