9911796707
TMI Blog2015 (10) TMI 2446X X X X Extracts X X X X X X X X Extracts X X X X ..... lant was dismissed on the ground that the Appellant failed to make a pre-deposit of 7.5% of the duty demanded in terms of Section 129 E of the Act. 2. The brief facts leading to the filing of the present appeal are that pursuant to a show-cause notice ("SCN") issued to the Appellant on 10th July 2014 regarding non-fulfilment of its export obligations, an order was passed by the Commissioner of Customs (Export) on 10th October 2014 confirming a demand of duty of Rs. 5,96,03,154.51 payable by the Appellant under Section 143 (3) read with Section 28 of the Act. By said order the Appellant was held liable to pay interest and penalty of Rs. 1,49,00,000 under Section 112 of the Act. 3. Aggrieved by the above order, the Appellant filed the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 6. At the outset it must be noticed that both Section 35F of the Central Excise Act, 1944 ("CE Act") as well as Section 129 E of the Act were amended by the Finance Act No.2 of 2014, with effect from 6th August 2014, to provide for mandatory pre-deposit of a fixed percentage of the duty demanded as a pre-condition to the CESTAT entertaining an appeal. For an appeal against the order passed by an officer of the rank of the Commissioner of Customs and below it was 7.5% and for an appeal against the order of the Commissioner (Appeals) it was 10%. The first proviso to Section 129 E stated that the pre-deposit made thereunder would not exceed Rs. 10 crores. The second proviso to Section 129E of the Act clarified that the said provision would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egatived the challenge to its constitutional validity. 8. In Ganesh Yadav v. Union of India (supra) the Allahabad High Court next dealt with the specific contention of the Assessee therein that the amended Section 35 F of the CE Act which was brought into effect from 6th August 2014, would not apply to the Assessee since the SCN to it was issued on 19th September 2013. It was contended that the amendment to Section 35F cannot "retrospectively abridge or curtail the right of appeal which vested in the Petitioner upon the issuance of a notice to show cause on 19th September 2013." After considering the decision of the Constitution Bench of the Supreme Court in Garikapatti Veeraya v. N. Subbiah Choudhury AIR 1957 SC 540 and certain other deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l appeals filed on and from the date of the enforcement of the amended Section 35 F of the CE Act. The Allahabad High Court declined to concur with the view expressed by the learned Single Judge of the Kerala High Court in Muthoot Finance Limited v. Union of India (supra) which in turn referred to the interim order passed by the High Court of Telangana and Andhra Pradesh in K. Rama Mohanarao v. Union of India 2015 TIOL 511 HC-AP-CX. 10. The decision of the learned Single Judge of the Kerala High Court in Muthoot Finance Limited v. Union of India (supra) was rendered in a case involving a challenge to a finalised demand of service tax passed in the year 2012. The learned Single Judge refused to entertain the writ petition since the Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. The Court is therefore unable to concur with the view of the learned Single Judge of the Kerala High Court in Muthoot Finance Limited v. Union of India (supra) or of the High Court of Telangana and Andhra Pradesh in K. Rama Mohanarao v. Union of India (supra). 11. The decision of the learned Single Judge of the Madras High Court in Fifth Avenue Sourcing (P) Ltd. V. Commissioner of Service Tax (supra) also proceeds on the basis that the date of issuance of an SCN by itself creates a vested right in the noticee as regards the appeal that may be filed against the adjudication order pursuant to such SCN. As already observed, it is possible that pursuant to an SCN, the adjudication proceedings may be dropped if the adjudication authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... validity of the amended Section 129 E of the Act. As regards the interpretation of the amended Section 129 E of the Act, the Court concurs with the decision of the Allahabad High Court in Ganesh Yadav v. Union of India (supra) in the context of the identically worded Section 35 F of the CE Act and holds that the amended Section 129 E of the Act will apply to all appeals filed under Section 130 of the Act on or after 6th August 2014. 13. In the present case, the Appellant deposited a sum of Rs. 4,95,532 on 8th May 2015 which was admittedly not 7.5% of the demanded duty as confirmed by the order dated 10th October 2014 by the Commissioner of Customs (Export). This had to necessarily result in the dismissal of its appeal by the CESTAT. 14. N ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
