TMI Blog2019 (1) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... plications already pending before the appellate authority prior to the commencement of the Finance Act No.2 of 2014 dated 6th August, 2014. Thus, it becomes abundantly clear that the amendment for sure will apply to all the appeals filed on or after the said date (06.08.2014) - In the present case, admittedly, the impugned appeal has been filed after the said amendment. The lis for the purpose of Section 35 F begins with the filing of appeal before CESTAT and the Tribunal has to apply the second proviso to the amended Section 35 F of Central Excise Act. Apparently that appeal has been filed after 6th August, 2014. Resultantly, the amended section 35 F shall be applicable to the impugned lis - application disposed off. - Service Tax ROA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rala in the case of Jeevan Telecasting Corporation Ltd. vs. CCE, Kochi reported in 2015 (320) ELT 63 to impress upon that right of appeal vests in a person on the date of institution of proceeding. He has also impressed upon the decision of Hon ble Apex Court in the case Hoosein Kasam Dada (India) Ltd. vs. State of Madhya Pradesh Others reported in 1953 SCR 987 to impress upon that until actual assessment is there, there can be no lis and therefore no right of appeal can accrue before that event. Finally impressing upon that since the show cause notice in the present case was issued prior the amendment for making 7.5% of demand confirmed as deposit as a mandate as such the lis stands accrued prior the said amendment, the objection of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Commissioner (Appeals), as the case may be, shall not entertain any appeal - (i) under sub-section (1) of section 35, unless the appellant has deposited seven and a half per cent. of the duty, in case where duty or duty and penalty are in 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 seven and a half per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellate authority prior to the commencement of the Finance Act No.2 of 2014 dated 6th August, 2014. Thus, it becomes abundantly clear that the amendment for sure will apply to all the appeals filed on or after the said date (06.08.2014). In the present case, admittedly, the impugned appeal has been filed after the said amendment. 6. The perusal of the decision as relied upon by the applicant also clarifies that amendment of Section 35 F of Central Excise Act, 1944 since is effective from 6th August, 2014 shall not be required to be made were the lis in question has commenced prior to 6th August, 2014. 7. Though the appellant has impressed upon the definition of lis to be taken as the date of the impugned show cause notice as he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court appears to have proceeded on the basis that the interim order passed by the High Court of Telangana and Andhra Pradesh in K. Rama Mohanarao v. Union of India (supra) was consistent with the legal position that the institution of a suit carried with it an implication that all rights of appeal then in force are preserved to the parties. A demand of tax raised by way of a SCN does not get crystallised till there is an adjudication of the SCN. There can be no parallel therefore with the institution of a suit. Thirdly, the clear language of the second proviso to amended Section 35F of the CE Act, the validity of which was not in challenge before either the Kerala High Court or the High Court of Telangana and Andhra Pradesh High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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