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TMI Blog2019 (7) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 59 of the Act, as sufficient pre-deposit and dispose of the same, within a time bound manner. 2. The Petitioner-company was incorporated under the provisions of the Companies Act, 1956, and is engaged in the manufacture and export of ready-made garments viz, pyjama tops and shorts covered under Chapter 62 of the Central Excise Tariff Act, 1985. Further, the petitioner company is also approved as a 100% Export Oriented Unit (EOU) and issued with a Green Card No.1444/MEPZ dated 06.10.2005 by the Development Commissioner, MEPZ, Chennai with a validity up to 05.10.2010 in respect of LOP No. PER - A/2005/067/EOU - TN, dated 04.10.2005 for manufacturing ready-made garments. The petitioner company also possess an Importer-Exporter Code bearing IEC No.3204004376. Further, the petitioner company is also registered under Section 58(1) and Section 65 of the Customs Act, 1962 (hereinafter referred to as "the Act") for sourcing and in-bond manufacturer respectively and is issued with License No.10/2005 by the Assistant Commissioner, Tambaram Division, Chennai-III Commissionerate. Necessary sanction has also been provided to the petitioner company to have an additional Bonded War ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elayed payment of duty under Section 28AB of the Act. (k) Appropriation of the bank guarantee of Rs. 6,25,000/- executed in terms of the B-17 Bond to the above demand. (l) Confiscation of the Eicher van seized under Mahazar dated 05.03.2007 under Section 115 of the Act. (m) Personal penalty to be imposed on the petitioner and Mr.T.Arunachalam under Section 112 of the Act." 4. Responding to the said notice, the petitioner company filed a detailed reply dated 14.01.2008 stating that the proposals made in the aforesaid Show Cause Notice are neither tenable on facts nor under law and that the petitioner company has not committed any violation of the provisions of the EOU Scheme or the provisions of the Foreign Trade Policy/ the relevant Customs Notification as applicable to the EOU Scheme. The petitioner company further stated that there was no violation that would substantiate any of the demands proposed in the show cause notice and had in detail shown cause as to why the allegations in the aforementioned show cause notice are not sustainable. 5. According to the petitioner, the Commissioner of Central Excise, Chennai III Commissionerate, Chennai, 2nd respondent herein, withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2008, along with a petition to condone the delay, which was condoned by the 1st respondent. 8. In any event, the said Appeal in Diary No.42043/2006 filed by the petitioner company was returned by the 1st respondent for non-compliance of the pre-deposit requirements under the amended Section 129E of the Act, which mandated deposit of 7.5% of the adjudicated dues with the Tribunal, as a pre-condition for entertaining the Appeal. Considering the financial inability of the petitioner company, an application was filed seeking waiver of the predeposit, by treating the amount realised by the 2nd respondent through auctioning of the goods confiscated from the petitioner as payment of predeposit for filing the said appeal. 9. The petitioner has contended that the Commissioner of Central Excise, Chennai III Commissionerate, Chennai, the 2nd respondent, without properly considering the peculiar facts and circumstances of the case, vide order dated 14.09.2017, rejected the appeal as not maintainable for noncompliance of the requirement of Section 129E of the Act. In the facts and circumstances, according to the petitioner, the prayer for interim relief is not granted as prayed for, the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 interest demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing. After amendment: 129E. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal:- The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal,-- (i) under sub-section (1) of Section 128, 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 customs lower in rank than the Principal Commissioner of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. 19. A right to appeal, is only a statutory right. The right to file an appeal can be hedged by conditions. If the argument of the petitioner is accepted then it would mean that there is a vested right in any appellant to claim the benefit of waiver of pre-deposit. Reading of Section 129E, as it stood prior to amendment shows that the appellant, before the tribunal, would apply to the tribunal for waiver of the entire pre-deposit and it was the discretion of the tribunal, whether to waive it or not. Further the proviso to section 129E after amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Eicher Motors Ltd. v. Union of India [1999 (106) ELT 3] and held that the mere imposition of a restriction with regard to the exercise of a right, without taking away such a right, would not tantamount to a retrospective amendment. The Court held that the second proviso inserted by way of amendment did not take away the right, but merely restricted the period available for a manufacturer for the exercise of such a right. 59. Therefore, if one condition that was already available in the statute for the exercise of a right of appeal, is merely replaced by another condition, the same cannot be said to be retrospective, unless it is definitely shown that the amended condition is more onerous than the unamended condition. When the unamended condition gave only a chance or hope for an assessee to get a total waiver at the discretion of the Appellate Authority, the same cannot be equated to a vested right. A mere chance of convincing the Appellate Authority to exercise the discretion for the grant of a total waiver is no vested right. The amendment, in our considered view, did not take away a right vested, but merely made a chance divested. What has now gone, is not the right , but th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court held that it is not always an inflexible rule of construction that a proviso in a statute should always be read as a limitation upon the effect of the main enactment. Though generally the presumption would be that but for the proviso the enacting part of the Section would have included the subject matter of the proviso, in some cases the clear language of the substantive provision as well as the proviso may indicate that both of them were substantive provisions. 66. In S.Sundaram Pillai vs. R.Pattabiraman [AIR 1985 SC 582], the Supreme Court reiterated that though normally a proviso is an exception to the main part of the Section, it could, in exceptional cases, be a substantive provision by itself. Quoting from its earlier decision in Dwarka Prasad vs. Dwarka Das Saraf 1976 (1) SCR 277, the Court pointed out that a proviso should be limited in its operation to the subject matter of the enacting clause and that to expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction. In para 43 the Court summarized the four different purposes that may be served by a proviso, as follows:- "43. We need not multiply authorities after a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was not on the basis of the second proviso. Therefore, we need not even find out whether the second proviso is exhaustive about the exclusions, or whether the second proviso is a substantive provision in itself or the extent to which the second proviso would control the substantive provision. Hence, the second contention of the petitioner is also rejected. 71. The third contention of the learned Senior Counsel for the writ petitioner is that the High Courts of Andhra Pradesh and Telungana and Kerala have taken a view that the amendment is prospective in nature and that it would apply only to proceedings originally initiated on or after 6.8.2014. 72. The decision of the High Court of Andhra Pradesh relied upon by the learned Senior Counsel in K.Rama Mohanarao is only a prima facie view. We have already analysed this decision while dealing with the first contention. Similarly, the decision of the Kerala High Court in Muthoot Finance Limited has also been analysed in great detail by us. With great respect to these Courts, we have not agreed with the view taken by them, for the reasons that we have indicated in great detail while dealing with the first contention. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Lastly it is contended by Mr.Joseph Prabhakar that the assessees do not stand to gain by fighting on pre-deposit condition. If they lose the battle after exhausting all avenues, the assessees are obliged to pay the amount due, together with interest at a higher rate. Therefore, it is his contention that a provision that grants a temporary reprieve to the assessees need not necessarily be interpreted in such a harsh manner. 78. But we do not agree. In fact the assessees should be more happy that they are not thrown at the mercy of the Appellate Authorities for considering the question of waiver of pre-deposit condition. The law now fixes a standard rate, applicable to all persons uniformly, without subjecting the assessees to the vagaries of weather prevailing in the offices of the Appellate Authorities/Tribunals. 79. We have actually come across several cases where the Tribunal has granted waiver of different percentages in cases of identical nature, without any rhyme or reason. In fact this Court is burdened with appeals both under Section 35-G of the Central Excise Act and Section 130 of the Customs Act, against the orders of the Tribunal granting or refusing to grant waiv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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