TMI Blog2016 (5) TMI 1059X X X X Extracts X X X X X X X X Extracts X X X X ..... ants have not put on record any decision of the Division Bench or any other judgement supporting their stand that pre-deposit is not required. Consequently there is no sufficient force in the appellants’ stand that the deposits are not required to be made. - Decided against the appellant - C/20178/2015-SM, C/20826/2015-SM, C/20828/2015-SM - Final Order No. 20308-20310 / 2016 - Dated:- 22-4-2016 - SHRI ASHOK K. ARYA, TECHNICAL MEMBER For the Appellants : None For the Respondent : Mr. Uma Banawalkar, A.R. ORDER PER : ASHOK K. ARYA In these three matters, the defect memos were issued by Registry inter alia regarding non-deposit of the mandatory requirement of deposit of 7.5% /10% of the confirmed demand against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is understood that there are number of decisions on the said issue pronounced by various High Courts. The Hon ble Karnataka High Court in the case of Hindustan Petroleum Corporation Ltd. [2015-TIOL-2637-HC-KAR-CX] has held that amended Section 35F / 129E of the Central Excise Act, 1944 and Customs Act, 1962 respectively are retrospective in operation and would cover all the appeals filed before the Tribunal on or after 6.8.2014. The Honble Karnataka High Court in this case has inter alia concluded as follows: (1) It is held that in the instant case, the right to file an appeal, which is a substantive right granted under Sections 35 and 35B of the Act has not been amended and remains intact. That Section 35F of the Act as amended, con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... keeping intact the earlier provision of Section 35F to be made applicable to circumstances noted under the second proviso. That in all other cases not covered under the second proviso, the amended Section 35F is applicable as it has a retrospective operation. Such a legislation by amendment having a retrospective operation is a valid piece of legislation. (5)....... (6) As the amended Section 35F has a retrospective operation and none of the petitioners herein has filed an appeal prior to 6/8/2014 before the appellate authority or if the appeal has been preferred subsequently has not deposited the requisite predeposit before the appellate authority, as the case may be, they are required to comply with the conditions of the amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 35F of the Act. 20. The intendment of Section 35F of the Act is further clarified by the second proviso which stipulates that the provisions of the section shall not apply to stay applications and appeals which were pending before any appellate authority prior to the commencement of Finance (No. 2) Act, 2014. The second proviso is a clear indicator that Parliament has exempted the requirement of complyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading (India) Pvt. Ltd. has mainly relied upon the Hon ble Kerala High Court s decision in the case of Muthoot Finance Ltd. (supra) which stands set aside by the Division Bench. Similarly, Hon ble Madras High Court s decisions stand passed by referring to the said Single Judge decision of the Hon ble Kerala High Court which stands set aside by the Division Bench. One takes note that the said decisions of the Hon ble Madras High Court are judgements of the Single Judge of the High Court. As against the above, Hon ble Delhi High Court and Hon ble Allahabad High Court have considered the Hon ble Kerala High Court s decision and the judgment passed by the Hon ble High Court are by the Division Bench, thus having binding force. Not only that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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