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TMI Blog2015 (9) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise Act, 1944 as amended with effect from 6-8-2014. When the Registry required them to make the mandatory pre-deposit, they submitted that in their view, as the respective show cause notices in their cases were issued prior to 6-8-2014 they are not required to make the mandatory pre-deposit and that their case should be put up to the CESTAT Bench for decision on this issue. That is how the case is before us. 2. During the hearing, the appellants have essentially put forth the following arguments : (i) Where return filed by the noticee is disputed by the department by issue of SCN, a "LIS" arises. (ii) Where "Lis" arise, the substantive right of appeal vested in the noticee accru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2014 even if the respective SCNs were issued prior to 6th August, 2014. In the present appeals also, the SCNs were issued prior to 6th August, 2014. Merely because these appeals are filed after 6th August, 2014 applying the amended provision will amount to discrimination between similarly situated appeals on the basis of date of filing only. 3. They also cited the following case laws in support of their contentions. (i) Hossein Kasam Dada (India) Ltd. v. State of Madhya Pradesh - 1953 SCR 987 (ii) M/s. Bajaj Overseas Impex v. Special Commissioner - WP (C) No. 2766 of 2013, dated 8-5-2013 (iii) Commissioner of Income Tax v. Vatika Township Pvt. Ltd. - 2009 (314) ITR 338 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in dispute, in pursuance of the decision or order appealed against : 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 - i.e. 6-8-2014. 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. Provision of Section 35F of the Central Excise Act, 1944 prior to 6-8-2014 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 5. It is not in dispute that the amended Section 35F is applicable only prospectively. As per the amended Section, the Tribunal shall not entertain any appeals unless the appellant has made a mandatory pre-deposit of seven and a half percent/ten percent of the duty (or penalty if only penalty is in dispute) as the case may be. By virtue of a proviso to that Section, mandatory pre-deposit shall not be applicable to the stay applications and appeals pending before the appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erpretational freedom. If the provisions of the said Section are in violation of any law declared by the Hon'ble Supreme Court, then it can only be read down or struck down by a competent Court; CESTAT for the reason mentioned earlier being in no position to do so. 6. That said, let us also analyse whether the amendment to Section 35F causes a prejudice to the appellants. The appellants have essentially contended that the amendment to Section 35F has whittled down their "unfettered" right to appeal which they had prior to the amendment to that Section. We find that prior to 6-8-2004 the right of an appellant to appeal was subject to the condition that the person filing appeal shall, pending the appeal, deposit the duty demanded or pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essential ratio of those judgments was that where 'Lis' arises, the substantive right of appeal vested in the noticee accrues and so the right of appeal and the provision of law regarding right to appeal as applicable on the day such right accrued shall apply. Under that law (i.e. unamended Section 35F) the right to file appeal required, pending appeal, deposit of the duty demanded or penalty levied. At present, the right to appeal (under the amended Section 35F) requires deposit of only 7.5%/10% of duty or penalty (as the case may be). It is thus evident that the amended Section 35F by requiring the appellant to deposit only 7.5%/10% of duty or penalty as the case may be, has in no way prejudiced the appellants right to appeal vis-&ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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