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2015 (10) TMI 2533 - KERALA HIGH COURT

2015 (10) TMI 2533 - KERALA HIGH COURT - 2016 (42) S.T.R. 811 (Ker.) - Whether under the unamended provision of Section 35F, it was obligatory for the appellants to deposit the entire amount covered by the demand or penalty order unless waiver is sought for and granted by the Appellate Tribunal for reasons in terms of the statutory provisions as it then stood - Held that:- we have bestowed our anxious consideration to the different aspects of the matter and are of the firm view that the question .....

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- The Appellate Tribunal ought to take up the appeals which have been instituted by the writ petitioners and hear them and the Revenue on the issue regarding deposit. What will be required to be considered as the first question would be as to whether the provision for deposit will be governed by Section 35F before its substitution with effect from 6-8-2014 or such deposit has to be governed by the substituted provision in terms of the substitution made as per Finance (No. 2) Act, 2014. The q .....

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late Tribunal shall not reject any of the appeals of the writ petitioners without deciding the aforesaid issue. The Tribunal will ensure that it decides the matter untrammelled by anything stated in the judgment of the learned Single Judge. Let this be done within a period of one month from the date of receipt of a copy of this judgment. - Appeals disposed of - W.A. Nos. 1151, 1201, 1267, 1406-1408, 1417, 1458 and 1698 of 2015 - Dated:- 29-10-2015 - Thottathil B. Radhakrishnan and Anu Sivaraman, .....

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for the Central Board of Excise and Customs and the other learned advocates appearing on behalf of the appellants in different matters. We have also heard the learned Advocates appearing for the respondents who were the petitioners in the writ petitions before the learned Single Judge, leading to these appeals. 3. Different orders issued by the statutory authority confirming demand of service tax and penalty were impeached through writ petitions. The learned Single Judge was of the view th .....

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for decision in these appeals. 4. The appeals at the instance of the Union of India are necessitated by reason of the view taken by the learned Single Judge that the appeals which would be filed by the writ petitioners before the Customs, Central Excise and Service Tax Appellate Tribunal shall be dealt with as if the provisions of Section 35F of the Central Excise Act applied as it stood before its substitution by Finance (No. 2) Act, 2014 with effect from 6-8-2014. 5. The crux of the .....

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uniform requirement to deposit 7.5% of the duty or duty and penalty in dispute. The second proviso to Section 35F so substituted with effect from 6-8-2014 provided that the provisions of that 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., on 6-8-2014. 7. The learned Single Judge, referring to some of the precedents, directed the Tribunal to entertain the appeals without ins .....

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w pending before the Tribunal at the instance of the writ petitioners would be governed by Section 35F of the Central Excise Act as it stood before 6-8-2014 or by the substituted Section 35F was not an issue raised through pleadings or otherwise, for consideration before the learned Single Judge. The Union of India is, therefore, justified in saying that it did not have an opportunity to place its views as to the appropriate construction, interpretation and application of the provisions under Se .....

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