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2016 (5) TMI 672 - MADRAS HIGH COURT

2016 (5) TMI 672 - MADRAS HIGH COURT - 2016 (43) S.T.R. 25 (Mad.) - Whether the amendment to Section 35F of Central excise Act, 1944 could be prospective or retrospective in nature - Condition to make a pre-deposit of a fixed percentage of the tax demanded or penalty levied or both - Petitioner contended that inasmuch as the right of appeal available to a person is a vested right, which accrues on and from the date on which the lis commences, the date on which such right of appeal accrues should .....

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e exercise of such a right subject only to the restriction that the conditions so imposed are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory. - Therefore, if one condition that was already available in the statute for the exercise of a right of appeal, is merely replaced by another condition, the same cannot be said to be retrospective, unless it is definitely shown that the amended condition is more onerous than the unamended condition. When the .....

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oner is liable to be rejected. - Legal effect of a proviso - Petitioner contended that the second proviso to the amended Section 35F cannot be taken to have excluded all other possible alternatives, that could arise out of the amendment of a proviso - Held that :- on the first contention of the writ petitioner, we have independently come to a conclusion that even the substantive provision of Section 35-F, after its amendment, is not capable of any other interpretation. Our conclusions on the .....

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he amendment is prospective in nature and that it would apply only to proceedings initiated after 6.8.2014 - Held that:- the decision of the High Court of Andhra Pradesh relied upon by the learned Senior Counsel in K.Rama Mohanarao is only a prima facie view. We have already analysed this decision while dealing with the first contention. Similarly, the decision of the Kerala High Court in Muthoot Finance Limited has also been analysed in great detail by us. With great respect to these Courts, we .....

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ring of writ petition, the assessee seems to have agreed to go before the Appellate Authority and sought a clarification that the amendment would not apply to his case - Learned Single Judge agreed with the said contention and allowed the assessee to file an appeal along with an application for waiver without making a pre-deposit of 7.5% as per the amendment - Held that:- the interpretation given by the learned Judge to the amendment, is not correct. - Decided in favour of appellant - W.P.No.134 .....

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etitioner, to file a statutory appeal before the CESTAT with a further direction to CESTAT not to insist upon a pre-deposit of 7.5% of the tax amount, as per the amendment that came into effect on 6.8.2014, the writ petition is filed by yet another assessee seeking declaration that Section 35F of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 would apply only to the show cause proceedings initiated on or after 6.8.2014. 2. We have heard Mr.C.Natarajan, learned Senior .....

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f the fact that the issue raised in both these proceedings revolve around the question as to whether the amendment to Section 35F could be prospective or retrospective in nature. 4. A few facts out of which both these proceedings arise, may be necessary, before we proceed to deal with the legal issues raised. W.A.No.1424 of 2015 5. The Commissioner of Service Tax is the appellant in this writ appeal. The respondent/assessee is engaged in the business of sourcing of Indian Garments for Foreign Bu .....

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l dated 27.2.2015, the Commissioner overruled the objections and confirmed the proposal. 7. Challenging the said Order-in-Original, the assessee filed a writ petition in W.P.No.12546 of 2015. Though the assessee contended that the Order-in-Original was a non-speaking order and that it was also without jurisdiction, the assessee appears to have submitted before the learned single Judge that he was also prepared to go before the Appellate Authority namely CESTAT. The assessee claimed that the amen .....

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cation for stay without making a pre-deposit of 7.5% of the tax demanded. Aggrieved by the interpretation given by the learned Judge to the date of coming into force of the amendment, the Commissioner of Service Tax has come up with the above appeal. W.P.No.13431 of 2015 9. The petitioner in this writ petition is in the business of real estate agency and consultancy. The petitioner has registered itself with the Department of Service Tax, under the category "Real Estate Agency Services" .....

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the entire difference between the two amounts, should not be brought to tax. 11. The writ petitioner filed a detailed reply to the show cause notice on 6.9.2010 and also made written submissions on 25.11.2011. The petitioner claimed in the reply that only an amount of ₹ 77,49,124/- was payable as Service Tax for the period in question and that the same had already been paid. 12. However, the objections of the petitioner were overruled and an Order-in-Original dated 11.8.2014 was passed, c .....

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writ petition in W.P.No. 8443 of 2015. But the writ petition was dismissed by a learned single Judge on the ground that the petitioner has an effective alternative remedy of appeal before the CESTAT and that merely because the petitioner may have to make a pre-deposit of 7.5% of the demand, the petitioner cannot bypass the alternative remedy of appeal. 15. Finding that an appeal to the CESTAT can be entertained, as per the amendment to section 35 F only if a pre-deposit of 7.5% of the duty is pa .....

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ow cause proceedings initiated after 6.8.2014, the petitioner thinks that they would be governed by the statutory provisions that existed before 6.8.2014. Before 6.8.2014, the CESTAT was vested with a discretion to waive the pre-deposit condition in entirety, if the insistence of pre-deposit would cause undue hardship to the assessee. 17. In other words, the writ petitioner hopes that if the amendment that came into effect on 6.8.2014 is held to be not applicable to his appeal despite the fact t .....

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ct namely that the writ petitioner has not challenged the vires of the amendment. The writ petitioner is seeking only a declaration that the amendment would apply only to show cause proceedings initiated after 6.8.2014 and not to proceedings which were initiated, pending or disposed of at the Original stage, before the cut-off date namely 6.8.2014. STATUTORY PROVISIONS 19. Section 35F of the Act, as it stood before the amendment and as it now stands after the amendment by Finance Act, 25 of 2014 .....

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ity 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 fit to impost so as to safeguard the interests of revenue: PROVIDED FURTHER that where an appli .....

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1) of section 35, unless the appellant has deposited seven and half per cent, of the duty, in case where duty or duty and penalty are om 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 Principal Commissioner of Central Excise or 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 .....

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two important changes have come to be made. These changes are: (i) Prior to the amendment, the rule was that the person desirous of filing an appeal should deposit the duty demanded, during the pendency of the appeal. But the Commissioner (Appeals) and the Appellate Tribunal were granted a discretion to dispense with the requirement of such deposit, in full or in part, if the Appellate Authority is satisfied that such pre-deposit would cause undue hardship to such person. But by the amendment, .....

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t change brought forth by the amendment. (ii) The second change brought forth by the amendment is that the distinction between the goods which are under the control of the Central Excise authorities and those which are not under the control of the Excise authorities has been removed. Prior to the amendment, the rule that the entire duty demanded should be deposited during the pendency of the appeal, was not applicable to cases where the goods were under the control of the Central Excise authorit .....

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led to file an apeal without making any deposit. Now it is not so. Yet none of those persons have come up with a challenge to the amendment as such. 22. In respect of those whose goods are not under the control of Central Excise authorities, the effect of the amendment could not be termed either as more beneficial or as more onerous. The amendment has actually removed the element of uncertainty in these cases, as persons who fall under this category, could have earned anything between a 100% wai .....

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el appearing for the writ petitioner is that inasmuch as the right of appeal available to a person is a vested right, which accrues on and from the date on which the lis commences, the date on which such right of appeal accrues should be the date on which the original cause itself arose. Therefore, the right so vested cannot be taken away retrospectively by an amendment. (ii) His second contention is that the second proviso to the amended Section 35F cannot be taken to have excluded all other po .....

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ng for the respondent/assessee in the writ appeal contended that while interpreting the amendment made to sub-section (3) and (3A) of Section 85 of the Act, the courts have held that they have to be applied only to proceedings initiated after the amendment. The learned counsel further submitted that even the Department had construed the amended provisions in the same manner, as seen from two Circulars issued by the Central Board of Excise and Customs. By Circular No.984/8/2014-CX dated 16.9.2014 .....

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ntage of pre-deposit, shall apply to all appeals filed on or after 6.8.2014. The second Circular became necessary in view of a confusion created in para 1.2 of the first Circular to the effect that the amended provisions contain a specific saving clause to the effect that all pending appeals and stay applications will be governed by the erstwhile proceedings. The further contention of Mr.Joseph Prabhakar learned counsel for the respondent/assessee in the writ appeal is that by refusing to make a .....

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e the amendment, culminating in an Original Order a few days before or after the amendment. 25. We have carefully considered the above submissions. 26. As we have pointed out earlier, the effect of the amendment is actually two fold, namely (a) the concession granted to those whose goods are in the custody of the Central Excise authorities, not to make any predeposit has been taken away, and (b) that insofar as other cases are concerned, the discretion that was vested with the Appellate Authorit .....

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[(1905) A.C. 369], where the Privy Council made a distinction between a matter of procedure and a matter of right in existence at the time of passing of a new enactment and the opinion rendered to the effect that to deprive a suitor in a pending action of an appeal to a superior Tribunal which belonged to him as of right is a very different thing from regulating the procedure. The Court also took note of the fact that the opinion of the Privy Council in Colonial Sugar Refining Company Ltd. was a .....

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ment of the action. 28. In Garikapatti Veeraya, the Supreme Court then analysed the decision of the Full Bench of this Court in Ramakrishna Iyer v. Sithai Ammal [(1925) ILR 48 Mad. 620], where this Court followed the distinction that was made out in Colonial Sugar Refining Company Ltd. between a case of procedure and a real right to invoke the aid of a higher Tribunal. The Supreme Court also took note of a decision of the Special Bench of the Calcutta High Court in Sadar Ali v. Dalimuddin [(1929 .....

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tter of substantive right and not merely a matter of procedure and this right became vested in a party when the proceedings were initiated. Such a right was held by the Supreme Court in Hoosein Kasam Dada to be a right that could not be taken away except by express enactment or necessary intendment. If the amendment had the effect of whittling down the right of appeal itself, then it could not have retrospective effect. 30. In paragraph 24 of its decision in Garikapatti Veeraya, the Supreme Cour .....

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st the dismissal of an application for default was refused to be entertained by the Appellate Court on the ground that the decree amount had not been deposited as per the proviso inserted by the amended Act of 1928. The Court held that by requiring pre-deposit as a condition precedent to the admission of the appeal, a new restriction has been on the right of appeal. Therefore, the Court came to the conclusion that the right of appeal had been affected by the amended provision and that in the abs .....

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e but is a substantive right. (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date 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 .....

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adjudication was passed on 31.3.1963. The assessee filed appeals on 04.7.1963. But, in the meantime, a notification dated 04.5.1963 was issued in exercise of the powers conferred under Section 12 of the Central Excise and Salt Act, 1944, declaring the provisions of Section 129 of the Customs Act, 1962, to be applicable in regard to like matters. The High Court held the notification on which reliance was placed by the revenue, to be in excess of the powers conferred. When the matter was taken to .....

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ted in the appellant. Nor can it be overlooked that such a requirement is calculated to interfere with or fetter, if not to impair or imperil, the substantive right. The right that the amended section gives is certainly less than the right which was available before. A provision which is calculated to deprive the appellant of the unfettered right of appeal cannot be regarded as a mere alteration in procedure. Indeed the new requirement cannot be said merely to regulate the exercise of the appell .....

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express provision or necessary intendment, the amended provisions cannot be made applicable to proceedings that had been initiated before the date of coming into force of the amendment. 34. Drawing our attention to the decision in R.Rajagopal Reddy v. Padmini Chandrasekharan [AIR 1996 SC 238], the learned senior counsel further contended that where a statutory provision which has not made retrospective by the legislature seeks to affect the vested rights and corresponding obligations of parties, .....

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Bench of this Court in The Deputy Commercial Tax Officer v. Cameo Exports [2006 (3) CTC 81]. In that case, the Division Bench of this Court was concerned with the effect of an amendment made to the Tamil Nadu General Sales Tax Act, 1959, by the amendment Act 14 of 1999. Prior to the amendment, the assessees were obliged only to pay the tax admitted by them, for filing statutory appeals. But, after the amendment, a mandatory pre-deposit of 25% of the difference between the tax assessed and admit .....

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ew of the foregoing discussion, we hold that the crucial date on which the right of the assessees to prefer an appeal under Section 31 or Section 36 of the Act is the date on which the returns are filed under the Act. In all these appeals, returns were filed long prior to the date when the provisions of Section 31 of the Act was amended by virtue of Act 14 of 1999. Further more, it is not disputed by the parties that the aforesaid amendments to the Act have not been given retrospective effect as .....

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in the writ petition, the Division Bench of the Andhra Pradesh High Court took a preliminary view that the writ petition raised two issues, namely (a) the vires of the amendment, and (b) the retro-activity of the amendment. On the second point, the Andhra Pradesh High Court took a view that the amendment may not be applicable to cases where a show cause notice had been issued before the coming into force of the amendment and where the lis had started before the amendments. The case appears to b .....

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ndia) Pvt. Ltd. v. Union of India [2015 (323) ELT 119 (P&H)], the decision of the single Judge of the Kerala High Court in Muthoot Finance Ltd. was followed. 39. However, a Division Bench of the Allahabad High Court struck a different note in Ganesh Yadav v. Union of India [2015 (39) STR 177 (All.)]. In the said case, the Allahabad High Court was dealing with a writ petition challenging the very vires of the amendment. After pointing out in paragraph 4 of its decision that as a first princip .....

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ional validity of the Finance Act 2 of 2014. 40. Thereafter, the Allahabad High Court took up for consideration the next question which is exactly identical to the question that is raised in the present case. After taking note of the decision of the Privy Council in Colonial Sugar Refining Co. Ltd., the decision of the Supreme Court in Hoosein Kasam Dada and the decisions of the Supreme Court in Jose Da Costa v. Bascora Sadasiva Sinai Narcornim [(1976) 2 SCC 917] and Ramesh Singh v. Cinta Devi [ .....

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e enforcement of the provision of Section 35F of the Act, as amended, an appellant has to deposit the duty and penalty as stipulated and unless the appellant were to do so, the Tribunal shall not entertain any appeal. This provision would, therefore, indicate that it would apply to all appeals which would be filed on and from the date of the enforcement of Section 35 of the Act. 20. The intendment of Section 35F of the Act is further clarified by the second proviso which stipulates that the prov .....

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, 2014. Consequently, both by virtue of the opening words of Section 35F(1) of the Act as well as by the second proviso to the provision, it is clear that appeals which are filed on and after the enforcement of the amended provision on 6 August 2014 shall be governed by the requirement of pre-deposit as stipulated therein. The only category to which the provision will not apply that would be those where the appeals or, as the case may be, stay applications were pending before the appellate autho .....

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Judge held that the same (the reduced period of limitation) would not apply to appeals arising out of the orders passed by the original authority before the date of coming into force of the amendment. 42. Mr.Joseph Prabhakar, learned counsel also brought to our notice a decision of the Division Bench of the Delhi High Court in Bajaj Overseas Impex v. Special Commissioner [2013 (62) VST 397]. The said case arose out of a dispute with regard to the applicability of the third proviso to Section 74( .....

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edent for considering an objection. Such a condition was not in force earlier. 43. But, a Division Bench of the Gujarat High Court took a different view in Premier Polyspin Pvt. Ltd. v. Union of India [2015 TIOL 1265 HC]. In that case, the Gujarat High Court was concerned with the very same amendment to Section 35F of the Central Excise Act with which we are concerned even in this case. Though the Gujarat High Court did not go into greater details, the Court held in paragraph 4 as follows: " .....

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has filed the appeal after the amendment was made in Section 35F of the Central Excise Act. Therefore, the amended provisions would apply and the appeal of the appellant before the CESTAT would not be maintainable in absence of deposit of an amount equivalent to 7.5% of the confirmed amount of duty liability. The other aspect of the matter is that if the argument of the learned counsel for the petitioner is accepted then he is required to pre-deposit 100% of the excise duty levied on him as he .....

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er Polyspin Pvt. Ltd. had already been taken in two decisions of the Rajasthan High Court. In Paramount Security v. Union of India [W.P.No.12232 of 2015], one Division Bench of the Rajasthan High Court recorded an opinion that the effect of the amendment cannot be restricted only to those appeals which are filed after 06.8.2014. The Court proceeded on the footing that the amendment was actually beneficial to the assessee and hence, the Bench held that to restrict such a benefit only to one categ .....

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missioner of Customs [2015 (320) ELT 497 (Raj.)]. 46. In State of Bombay v. Supreme General Films [1960 (3) SCR 640], a suit that was decreed on 22.7.1954 was taken on appeal to the High Court on 04.9.1954. The Court fee on the appeal was paid under the Court Fees (Bombay Amendment) Act, 1954 that had come into force on 01.4.1954. The appellant claimed a refund of excess Court fee on the ground that the suit was instituted on 16.4.1953 and hence, the Court fee as prevailing at that time alone wa .....

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or by necessary intendment". 47. The aforesaid decision in Supreme General Films was followed by the Supreme Court in Ramesh Singh v. Cinta Devi [1996 (3) SCC 142]. In Ramesh Singh, an application for compensation was filed on 23.12.1988 in respect of an accident that took place on 27.5.1988. But, by then, the Motor Vehicles Act, 1988 came into force repealing 1939 Act. The claim for compensation was allowed on 29.6.1992 and an appeal was filed on 25.9.1992. A Division Bench of the High Cou .....

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been no reference to another Constitution Bench of the Supreme Court in Hardeodas Jagannath v. State of Assam [AIR 1970 SC 724]. The said case arose out of the Assam Sales Tax Act, 1947, as amended by Act 6 of 1958. Under the said Act, an appeal against an order of assessment or penalty cannot be entertained by the authority unless the amount of tax assessed or penalty levied had been paid. The provisions of the Assam Sales Tax Act, 1947, were extended to the Administered Area in Shillong under .....

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terior to that date. Prior to the amendment, Section 30 contained a proviso requiring the assessee to pay only the admitted amount of tax as a pre-condition for entertaining the appeal. But, the Supreme Court held that when the orders of assessment were completed only after the coming into force of the amendment and when the appeals themselves were filed only after the amendment, it is not correct to say that the amended Act had been given retrospective effect. 49. Though the decision in Hardeod .....

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the Constitution Bench decisions and Hoosein Kasam Dada and Garikapatti Veeraya on the one hand and the Constitution Bench in Hardeodas Jagannath was brought to the notice of a Full Bench of the Punjab and Haryana High Court in Indo Swiss Times Ltd. v. Umrao [1981 PLR 335]. The Full Bench of the Punjab High Court held that in the event of two directly conflicting judgments of the Supreme Court and of equal authority, the judgment which appears to lay down the law more elaborately and accurately .....

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ns, as they existed prior to the amendment, would continue to govern the right of appeal vested in the assessee and that the same was saved in terms of Section 4 of the General Clauses Act, 1898. 52. For arriving at the above conclusion, the Punjab and Haryana High Court relied upon the decision of the Supreme Court in Vittalbhai Naranbhai Patel's case [AIR 1967 SC 344], to the effect that the relevant date to find out the applicability of the governing law would be the date on which the cau .....

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jay Prakash D.Mehta v. Collector of Customs [(1988) 4 SCC 402]. 54. Therefore, it is well settled that the right of appeal is a creature of statute and the legislature is well within its competence to impose conditions for the exercise of such a right subject only to the restriction that the conditions so imposed are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory. 55. Therefore, the question of prime importance that arises is, as to whether a switch- .....

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paragraph 38 of the decision, the Supreme Court stated as follows: "The decisions of the Bombay and Calcutta High Courts earlier referred to (Elora - AIR 1980 Bom. 162 and Chatter Singh - AIR 1984 Cal. 283) have upheld the validity of a provision banning the entertainment of an appeal altogether where the taxes are not paid. However, the Supreme Court decisions in Anant Mills [1975 (2) SCC 175], Vijay Prakash Mehta [1988 (4) SCC 402] and A.S.Bava [AIR 1968 SC 13] had occasion to consider on .....

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ost illusory" 56. Let us now conceive of different types of pre-deposit conditions that are capable of being imposed for entertaining a statutory appeal. In a graded scale they will be as follows: (i) A condition which makes it mandatory for the assessee to deposit the whole of the disputed tax or penalty or both can be said to be the most onerous; (ii) A condition that makes it mandatory for the assessee to deposit the entire amount of disputed tax, penalty or both with a discretion to the .....

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the question as to whether the condition of this nature requiring the assessee to make a pre-deposit of 7.5% could be placed in between the categories narrated in (i) and (ii) or in between categories narrated in (ii) and (iii) above. If this condition falls in between categories (i) and (ii), it is more onerous than the existing condition and hence, cannot take retrospective effect. If this condition falls in between categories (ii) and (iii), it is less onerous than the existing condition and .....

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to the Central Excise Rules, 1944. Prior to 29.6.1995, Rule 57-G of the said Rules entitled a manufacturer to withdraw the Modvat credit at any time without there being any limitation. But, by an amendment which came into effect on 29.6.1995, the second proviso to Rule 57-G was introduced. By the new proviso, a period of limitation of six months was introduced for a manufacturer to take credit. When it was argued that the amendment took away a vested right, the Supreme Court distinguished its ea .....

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e in the statute for the exercise of a right of appeal, is merely replaced by another condition, the same cannot be said to be retrospective, unless it is definitely shown that the amended condition is more onerous than the unamended condition. When the unamended condition gave only a chance or hope for an assessee to get a total waiver at the discretion of the Appellate Authority, the same cannot be equated to a vested right. A mere chance of convincing the Appellate Authority to exercise the d .....

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ded Section 35-F in a tabular column given in para 19 above. 61. There are two provisos to the amended Section 35-F. The first proviso states that the amount required to be deposited under the new Section, shall not exceed ₹ 10 Crores. The second proviso states 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 Finance Act 2 of 2014. 62. Taking clue from the second proviso, the Allahab .....

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be contended by Mr.C.Natarajan, learned Senior Counsel appearing for the writ petitioner that a proviso carving out an exception, need not necessarily be an indicator that what is not covered by the exception, will fall within the general Rule. In support of such a contention and in order to drive home the manner in which a proviso is to be interpreted, the learned Senior Counsel relied upon certain decisions which we shall now consider. 64. In Madras and Southern Mahratta Railway Company Limit .....

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ls within its express terms. 65. In Commissioner of Income Tax vs. Krishna Warriar [AIR 1965 SC 59], the Supreme Court held that it is not always an inflexible rule of construction that a proviso in a statute should always be read as a limitation upon the effect of the main enactment. Though generally the presumption would be that but for the proviso the enacting part of the Section would have included the subject matter of the proviso, in some cases the clear language of the substantive provisi .....

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ject matter of the enacting clause and that to expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction. In para 43 the Court summarized the four different purposes that may be served by a proviso, as follows:- "43. We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes: (1) qualifying or excepting cert .....

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he real intendment of the statutory provision." 67. In Ali MK vs. State of Kerala [AIR 2003 SC 4006], the Supreme Court quoted with approval the opinion rendered by the Privy Council in Jinnings vs. Kelly 1940 AC 206, to the effect that a proviso cannot be used to import into the enacting part, something which is not there. But where the enacting part is susceptible to several possible meanings, it may be controlled by the proviso. 68. In the light of the principles of law laid down in the .....

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Ganesh Yadav that the second proviso is a complete code in so far as cases that would not fall within the purview of the substantive provision. While interpreting the substantive provision, the Allahabad High Court drew inspiration from the second proviso to come to the conclusion that the substantive provision was capable of interpretation only one way. Otherwise, there could have been no necessity for the second proviso at all. 70. In any case, on the first contention of the writ petitioner, .....

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, the second contention of the petitioner is also rejected. 71. The third contention of the learned Senior Counsel for the writ petitioner is that the High Courts of Andhra Pradesh and Telungana and Kerala have taken a view that the amendment is prospective in nature and that it would apply only to proceedings originally initiated on or after 6.8.2014. 72. The decision of the High Court of Andhra Pradesh relied upon by the learned Senior Counsel in K.Rama Mohanarao is only a prima facie view. We .....

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essee/respondent in the writ appeal, based upon Sub-Sections (3) and (3-A) of Section 85 of the Finance Act, 1994 and the interpretation given to the same by this Court in Winwind Power Energy Private Limited, does not appeal to us. The curtailment of a period of limitation, by way of amendment, takes away a vested right of appeal. An amendment that takes away the right of appeal stands on a different footing from an amendment that merely changes the condition precedent for the filing of the app .....

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the erstwhile provisions. 75. On the ground that the aforesaid para 1.2 of the Circular dated 16.9.2014 created some confusion, the second Circular dated 5.1.2015 was issued. Para 4 of the second Circular reads as follows:- "4. Para 1.2 of the Circular ibid stated that amended provisions would apply to appeals filed after 6th of August, 2014. An Act of Parliament comes in to effect on the date it received the assent of the President of India. Hence, the amended provisions regarding filing o .....

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efore us is that if a show cause notice had been issued on 5.8.2014, the amended provisions will not apply to an order in original passed in pursuance of the same, even if such an order is passed after 6.8.2014. The above Circular does not support this contention of the petitioner. 77. Lastly it is contended by Mr.Joseph Prabhakar that the assessees do not stand to gain by fighting on pre-deposit condition. If they lose the battle after exhausting all avenues, the assessees are obliged to pay th .....

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ting the assessees to the vagaries of weather prevailing in the offices of the Appellate Authorities/Tribunals. 79. We have actually come across several cases where the Tribunal has granted waiver of different percentages in cases of identical nature, without any rhyme or reason. In fact this Court is burdened with appeals both under Section 35-G of the Central Excise Act and Section 130 of the Customs Act, against the orders of the Tribunal granting or refusing to grant waiver. Therefore, the a .....

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