TMI Blog2018 (11) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... ative intent which is so clearly visible from the provisions of Section 35-F of the Act and in fact, there would have been no necessity of amendment and Section 129(E) in its un-amended form need not have been tinkered with. Petition dismissed. - CWP No.2169 of 2018 - - - Dated:- 10-10-2018 - MR MAHESH GROVER AND MR AMIT RAWAL, JJ. For The Petitioner : Mr. Amar Pratap Singh, Advocate and Mr. Rohit Gupta, Advocate And Mr. Veer Singh, Advocate For The Respondent : Mr. Tajender K. Joshi, Advocate ORDER Mahesh Grover J. (Oral) By this order we will dispose of 08 writ petitions bearing CWP Nos.2169, 11347, 2191, 4529, 4530, 4623, 4635 and 5929 of 2018. The petitioner has questioned vires of Section 35F of The Central Excise Act, 1944 (hereinafter known as the Act ) as being un-constitutional. Further prayer has been made for issuance of certiorari to quash the impugned order dated 11.01.2018 (Annexure P-1) passed by the Customs Excise and Service Tax Appellate Tribunal ((hereinafter known as the Tribunal ). The petitioner is a trust engaged in promoting educational activities and faced a demand after an elaborative investigation into the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise and Taxation Officer or by an officer-Incharge of the information collection centre or check post or any other officer below the rank of Deputy Excise and Taxation Commissioner, to the Deputy Excise and Taxation Commissioner; or (b) if the order is made by the Deputy Excise and Taxation Commissioner, to the Commissioner; or (c) if the order is made by the Commissioner or any officer exercising the powers of the Commissioner, to the Tribunal. (2) An order passed in appeal by a Deputy Excise and Taxation Commissioner or by the Commissioner or any officer on whom the powers of the Commissioner are conferred, shall be further appeal-able to the Tribunal. (3) Every order of the Tribunal and subject only to such order, the order of the Commissioner or any officer exercising the powers of the Commissioner or the order of the Deputy Excise and Taxation Commissioner or of the designated officer, if it was not challenged in appeal or revision, shall be final. (4) No appeal shall be entertained, unless it is filed within a period of thirty days from the date of communication of the order appealed against. (5) No appeal shall be entertained, unless such appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of erroneous Cenvat credit taken; (iii) amount payable under rule 6 of the Cenvat Credit Rules, 2001 or the Cenvat Credit Rules, 2002 or the Cenvat Credit Rules, 2004. With regard to aforesaid, learned counsel for the petitioner while placing reliance upon the Division Bench judgment of this Court rendered in CWP No.26920 of 2013 titled as Punjab State Power Corporation Vs. State of Punjab and others, decided on 23.12.2015 contends that the Tribunal has gone wrong. We would like to refer to the judgment rendered in Punjab State Power Corporation's case (supra) which while interpreting the provisions of Section 62 (5) of 2005 Act, observed as follows:- 33. It is, thus, concluded that even when no express power has been conferred on the first appellate authority to pass an order of interim injunction/protection, in our opinion, by necessary implication and intendment in view of various pronouncements and legal proposition expounded above and in the interest of justice, it would essentially be held that the power to grant interim injunction/protection is embedded in Section 62(5) of the PVAT Act. Instead of rushing to the High Court under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or on the date of the filing of an appeal. Moreover, the vested right of an appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. Justice G.P.Singh in his treatise on Statutory Interpretation has succinctly elucidated the principles to be applied in determining whether a statute is retrospective or not, in the following words: ( ii) Statutes dealing with substantive rights.- It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only 'nova constitutio futuris formam imponere debet non praeteritis [2 c. Int. 392] . In the words of LORD BLANESBURG, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Section 129-E of the Act Prior to the amendment Section 129E prior to the amendment 129-E. Deposit, pending appeal, of (duty and interest) demanded or penalty levied. - Where in any appeal under this Chapter, the decision or order appealed against relates to any (duty and interest) demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the (duty and interest) 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 and interest) 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 impose so as to safeguard the interests of revenue; Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty and int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation generated further litigation before the higher forums taking a toll on the valuable time of the tribunal delaying the adjudication of the appeals. This undoubtedly caused a serious prejudice to the parties before the Tribunal. Thus the aim of the amended provision is also to curtail litigation which had assumed high proportions, leaving no time to the appellate authorities to devote the same to important issues. Considering these hard realties and to have a expeditious disposal of the statutory appeals which undoubtedly is a necessary requirement of effective trade, commerce and business, the Parliament in its wisdom amended the provisions of Section 129E of providing deposit of 7.5% and 10% respectively as sub-clauses (i), (ii) and (iii) respectively provide. If such is the aim and insight behind the provision, it certainly cannot be held to be unreasonable, onerous, unfair or discriminatory for two fold reasons. Firstly, the object of a public policy sought to be achieved by the amendment, namely speedy disposal of the appeals before the appellate authorities is a laudable object and cannot be overlooked, so as to label the provision as unreasonable and onerous and violati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. In this particular case, when the provisions of Section 35F of the Act gives no flexibility waiving off the pre-condition of a deposit, there would be little room to hold the order of the Tribunal as erroneous. The judgments relied upon by the learned counsel for the petitioner do not in any way enhance his case for the reason that in the Punjab State Power Corporation's case (supra) while dealing with Section 62(5) of 2005 Act, Court was examining the particular language of the statute which requires the furnishing of satisfactory proof of prior minimum payment of 25% of the total amount of additional demand, penalty and interest which to our minds itself offers sufficient room for the Tribunal to apply its mind on this aspect and conclude whether there has been compliance or not. There may possibly be an element of dispute qua the demand and the calculation of 25% and may form the basis of a plea of waiver by pleading sufficient deposit by the assessee. Similarly, in the case of Maruti Suzuki India Limited (supra), the Court dealt with the provisions of Section 45-AA of the Employees State Insurance Act, 1948 (hereinafter known as 1948 Act ) which are extracted herein be ..... 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