Contact us   Feedback   Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (7) TMI 391 - MADRAS HIGH COURT

2015 (7) TMI 391 - MADRAS HIGH COURT - 2015 (40) S.T.R. 71 (Mad.) , [2016] 89 VST 226 (Mad) - Waiver of pre deposit - Mandatory pre deposit of 7.5% - Provision of section 35F, whether prospective or retrospective - date of SCN 05.06.2013 - Date of OIO 27.02.2015 - amendment has come into effect from 06.08.2014 - Held that:- the assessee's right to file an appeal and a further appeal under the earlier Act is a vested right and such a right becomes vested in the assessee, the moment he filed his 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

nst the petitioner, within a period of two weeks - Decide din favour of assessee. - Writ Petition No.12546 of 2015 and M.P.No.1 of 2015 - 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 Pr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

redit (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 the vendors would reach the petitioner bank through the vendor's bank and only thereafter, the petitioner would substitute their invoice and bills of exchange permissible as per UCP and then the 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

ble to service tax under the category of ''Business Auxiliary Services'' as per Section 65(19) of the Finance Act. 3. The learned counsel appearing for the petitioner would further submit that the petitioner received a notice for Statement of Demand No.193/2013 dated 05.06.2013 for the period October 2011 to September 2012 to show cause as to why service tax of ₹ 1,74,04,550/- for the period commencing from October 2011 to September 2012 should not be demanded along with in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

that the Order-in-Original is not only non-speaking, but also has been passed without jurisdiction, inasmuch as it goes beyond the scope of show cause notice. Adding further, he would submit that although the petitioner has got merits in the matter, he is prepared to go back to the appellate authority to file the appeal against the impugned order, however, in the mean while, various High Courts have decided the filing of the appeal without making pre-deposit as the amendment has come into effec .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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. 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

he tax amount confirmed against the petitioner as pre-condition for maintaining the appeal cannot be accepted since neither the Hon'ble High Court of Kerala nor the Andhra Pradesh High Court has dealt with the second proviso to Section 35(F) of the Act. In support of his submission, after referring to the entire proviso including second proviso to Section 35(F), he has also placed on record the judgment of the Kerala High Court in K.V.Raghunathan Pillai ..vs.. The Commissioner of Central Exc .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

not find any merits in his submissions. 7. In this context, to answer the contentions raised by the learned counsel appearing for the respondent, it is necessary to extract Section 35(F) of the Finance Act, 2014, which is as follows:- 35F. The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal- (i) under sub-section (1) of Section 35, unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dis .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d against; (iii) against the decision or order referred to in clause (b) of sub-section (1) of Section 35B, unless the appellant has deposited ten per cent 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ection 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 CESTAT, it should be mentioned that the petitioner as against 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

nce Limited ..vs.. Union of India and another, which reads as follows:- 4. .......... The only point that arises for consideration is whether the petitioner would have to deposit the amount of 7.5% of the tax confirmed against him, as a condition for pursuing the appellate remedy before the Tribunal. I note in this connection that recently, a Division Bench of the High Court of Telengana & Andhra Pradesh has taken a prima facie view that, inasmuch as the lis in question had commenced prior 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

implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit and, further, that the right of appeal that is vested is to be governed by the law prevailing at the date of institution of the suit or proceeding, and not by the law that prevails at the date of its decision or at the date of filing of the appeal. (See: Garikapati Veeraya v. N.Subbiah Choudhry and other (AIR 1957 SC 540); Messrs Hoosein Kasam Dada (India) Ltd., v. 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

l 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. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y constituted appeal under the provisions of the Finance Act, 1994, as they stood prior to 16.08.2014, then the Appellate Tribunal shall number the Appeal, and consider the application filed by the petitioner for waiver of pre-deposit and stay of recovery of the amounts confirmed against him by Ext.P8 order, on merits and thereafter, proceed to hear the appeal itself in due course. The petitioner shall file the appeal, together with the application for waiver of pre-deposit and stay, before the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

re is a requirement of payment of 7.5% of the tax amounts confirmed against the petitioner, as a pre-condition for maintaining the appeal before the CESTAT. I note, in this connection, that this Court has taken a view that, in cases where the commencement of the lis is prior to the coming into force of the amendment dated 16.08.2014, the appeal to be filed by the assessee would be governed by the provisions of the Finance Act, 1994, as is stood prior to its amendment by the amendment dated 16.08 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d to consider the application for waiver of pre-deposit and stay, and thereafter, proceed to hear the appeal itself on merits. To enable the petitioner to do so, I stay further proceedings for recovery of the amounts confirmed against the petitioner by Ext.P7 order, for a period of one month, making it clear that on expiry of the period of one month, the stay granted by this judgment will cease to operate. 11. After that, the Hon'ble High Court of Andhra Pradesh also in M/s.K.Rama Mohana Rao .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

edings. 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 ves .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

clarity, it is pertinent to mention few facts involved in the case of Deputy Commercial Tax Officer, Tirupur Central I Assessment Circle, Tirupur and others ..vs.. Cameo Exports and others mentioned supra. The assessees therein filed Appeals before the Assistant Commissioner under Section 31 of the Tamil Nadu General Sales Tax Act, 1959, against the orders of assessment, but the Appeals were rejected by the appellate authority on the ground that they were not accompanied by the proof of payment .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ppeal was governed by provisions as on the dates they filed their monthly returns which were prior to June 10, 1999, when there was no mandatory condition for pre-deposit of disputed tax before the appeal was lodged. On the other hand the Revenue contended that although the right of appeal was substantive, it vested in an assessee on the date when the order of final assessment was made under Section 12(2) of the Act or the order of reassessment was made under Section 16 of the Act, and, in any c .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| 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