GST Helpdesk   Subscription   Demo   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2016 (7) TMI 365 - MADRAS HIGH COURT

2016 (7) TMI 365 - MADRAS HIGH COURT - TMI - Waiver of pre-deposit - Maintainability of writ petition against the order confirming the demand of service tax with interest and penalty - alternative appellate remedy - the submission of the learned counsel for the petitioner is that the petitioner should be permitted to go before the Tribunal with a direction to the Tribunal to take up the stay application, thereby bypassing the pre-deposit condition, which has been made mandatory with effect from .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r Petitioner : Mr.Joseph Prabhakar For Respondent : Mr.A.P.Srinivas, SPC ORDER Mr.A.P.Srinivas, learned Senior Panel Counsel takes notice for the respondent. Heard both. 2. The petitioner has filed this writ petition challenging an Order-in-Original passed by the respondent dated 23.3.2016, in and by which, the respondent confirmed the demand to the extent of ₹ 44,20,799/- being the service tax payable for the assessment years 2007-08 and 2011-12 in terms of the provisions of Section 73(1) .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

se to such a query, the learned counsel for the petitioner submits that the petitioner does not seek to canvass the merits of the case, but would pray for a direction to the petitioner to approach the Tribunal with a further direction to the Tribunal to take up the petitioner's stay application. In other words, the submission of the learned counsel for the petitioner is that the petitioner should be permitted to go before the Tribunal with a direction to the Tribunal to take up the stay appl .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t from August 2014), the petitioner's right to appeal, as per the erstwhile provision of law, could not be affected by the provisions introduced by the amendment of 2014. 7. The learned counsel for the petitioner fairly submitted that there is yet another judgement of the Hon'ble Division Bench of this Court in the case of M/s.Dream Castle & another Vs. Union of India & Others [2016-TIOL-1009-HC-MAD-ST] and this decision was rendered without noticing the decision in the case of 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

ly to all appeals presented after the amended date and such is also the view taken by another Hon'ble Division Bench of the Delhi High Court in the case of M/s.Pioneer Corporation Vs. Union of India [reported in 2016-TIOL-1116-HC-DEL-CX]. 9. Thus, after carefully considering the submissions made by the learned counsel for the petitioner, it is clear that the petitioner seeks a direction to the Tribunal, as directed by a learned Single Judge of this Court in the case of Fifth Avenue Sourcing .....

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 case of M/s.Dream Castle & another (cited supra). 10. However, now the petitioner seeks to take advantage of the observations made by another Hon'ble Division Bench of this Court in the case of Arafaath Travels Pvt. Ltd. (cited supra) and states that when one Hon'ble Division Bench made such an observation, this Court should direct the petitioner to approach the Tribunal with a direction to the Tribunal to take up the stay application. 11. The arguments advanced by the learned co .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hich were introduced with effect from 6.8.2014. 12. While testing the correctness of a pre-deposit order passed by the Tribunal, these observations have been made. However, the fact remains that in the decision in the case of M/s.Dream Castle and another (cited supra), the prayer sought for is to declare that Section 35F of the Central Excise Act read with Section 83 of the Finance Act would apply only to show cause proceedings initiated on or after 6.8.2014. The Hon'ble Division Bench, afte .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ticed in the decision in the case of M/s.Dream Castle and another (cited supra) and the Hon'ble Division Bench of this Court has given elaborate reasons as to how such a view is incorrect. 13. At this stage, it would be useful to refer to a few paragraphs in the decision in the case of M/s.Dream Castle and another (cited supra), which are as follows : "38. The interim order passed by the Andhra Pradesh High Court in K.Rama Mohanarao & Co. was followed by a learned Judge of the Keral .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ision Bench of the Allahabad High Court struck a different note in Ganesh Yadav Vs. 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 principle of law, the right of appeal is a statutory right and that it is always open to the legislature which confers a remedy of appeal to regulate the same subject to compliance of ce .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s 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 Vs. Bascora Sadasiva Sinai Narconim [(1976) 2 SCC 917] and Ramesh Singh Vs. Cinta Devi [AIR 1996 SC 1560], the Allahabad High Court held in paragraphs 19 and 20 as follows: '19. Parliament while substituting the provisions of Section 35F of the Central Excise Ac .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ibunal 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 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 authority prior to the commencement of Finance (No.2) Act, 2014.' 53. Despite all the conflicts, sometimes latent, sometimes patent and sometimes incorrigible, there has been unifo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ture 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-over from a regime where the deposit of the entire duty was mandatory subject however to the discretion granted to the Appellate Aut .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

er 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 only the vires of a milder provision which permitted the Appellate Authority to waive or relax the condition of deposit. As explained .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

taining 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 Appellate Authority to grant waiver of the whole or part of the amount can be said to be less onerous than the first; and (iii) 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

ween 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 hence, the question whether it is retrospective or not will not even be raised by those who are benefited by it." 14. In the l .....

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