TMI Blog2015 (7) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... 015 - - - Dated:- 12-6-2015 - The Honourable Mr.Justice T. Raja,J. For the Petitioner : Mr. Joseph Prabakar For the Respondent : Mr. V. Sundareswaran ORDER This Writ Petition has been directed against the impugned Order-in-Original No. C. No. IV/9/26/2013-STCAdj dated 27.02.2015 passed by the Commissioner of Service Taxes I, Chennai, on various grounds. 2. Mr. Joseph Prabakar, learned counsel appearing for the petitioner would submit that the petitioner being engaged in the business of sourcing for Foreign Buyers to procure Indian Garments, obtained Service Tax Registration under the category of ''Business Auxiliary Service''. After receiving orders from the buyers from abroad, the petitioner placed orders on different vendors/manufacturers in India and raised proforma invoice on the overseas buyer for the total order and again open Letter of Credit (LC) in their name. Similarly, on receipt of proforma invoice from the Indian vendors/manufacturers, the Letter of Credit would be transferred to the respective vendors/manufacturers, after retaining the margin of the petitioner. Once the shipment of the goods was effected, the documents from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd identical issue under Section 35(F) of the Act has come to the conclusion that the appellant would not be required to make the pre-deposit amount of 7.5% pursuant to 2014 Amendment. The same ratio has been once again reiterated by the Hon'ble Andhra Pradesh High Court stating that at the time of filing the appeal, the appellant is not required to make the payment as pre-condition for the hearing of the waiver application by the Tribunal. In support of his submission, he has relied upon the following judgments of Kerala High Court (i) M/s.Muthoot Finance Ltd., ..vs.. Union of India and another reported in 2015-TIOL-632-HC-Kerala-ST. (ii) Secretary to Government Department of Agriculture, Government of Kerala and another ..vs.. Union of India and another reported in 2015 TIOL 895 HC Kerala ST. and on this basis, he sought for a direction to enable the petitioner to file appeal without making payment of 7.5% of the tax amount confirmed against the petitioner as a pre-condition for making the appeal before the CESTAT. 6. Per contra, Mr.V.Sundareswaran, learned counsel appearing for the respondent, heavily opposing the above prayer would submit that the contentions made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pute, 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.'' 8. A close reading of second proviso to Section 35F of the Act makes it abundantly clear that the proviso to this Section shall not apply to stay applications and appeals pending before the appellate authority prior to the commencement of the Finance Act (2 of 2014). In the present case, as contended by the learned counsel appearing for the respondent to apply the second proviso in order to deny the benefit of filing the appeal without making the payment of 7.5% before the CESTA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to deposit the amount of 7.5%, as required pursuant to the 2014 amendment, and in that respect, he would have an efficacious alternate remedy before the Tribunal where he can file an appeal, together with an application for waiver of pre-deposit and stay or recovery of the amounts confirmed against him by Ext.P8 order. At the time of filing the appeal, he will not be required to make any payment as a pre-condition for the hearing of the waiver application by the Tribunal. I, therefore, relegate the petitioner to the alternate remedy available under the Finance Act, 1994, as amended, of approaching the Appellate Tribunal by way of an appeal against Ext.P8 order. It is made clear that the appeal to be filed by the petitioner would be governed by the statutory provisions, as they stood prior to the amendment introduced with effect from 16.08.2014. Thus, without making any observations on the merits of the case, and without prejudice to all the contentions that the petitioner can take against Ext.P8 order of the 2nd respondent, I dismiss the writ petition in its challenge against Ext.P8 order. I make it clear that, if the petitioner prefers a duly constituted appeal under the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble High Court of Andhra Pradesh also in M/s.K.Rama Mohana Rao Co. ..vs.. Union of India, Ministry of Finance, New Delhi and 4 others reported in 2015-TIOL-511-HC-AP-CX, while dealing with the very same amendment, has held that on the date of initiation of proceedings, the aforesaid amendment was not in force however, during the pendency of the matter, the above said amendment is made. Hence, on the date of initiation of proceedings, the right to appeal also accrues on that date, in view thereof, as the appeal is in continuation of the original proceedings. The aforesaid amendment may not be applicable for the simple reason that the proceedings were initiated with the issuance of show cause notice prior to the amendment. 12. In yet another reported decision in 2006 (147) STC 218 (Mad) (Deputy Commercial Tax Officer, Tirupur Central I Assessment Circle, Tirupur and others ..vs.. Cameo Exports and others), the Hon'ble Division Bench of this High Court, while answering the question as to when such a pre-existing right of appeal becomes vested in a party- Is it on the date of filing of the returns ? Or is it on the date when a pre-assessment notice is issued ? O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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