TMI Blog2019 (2) TMI 1931X X X X Extracts X X X X X X X X Extracts X X X X ..... lant Authority prior to the commencement of the Finance Act 2014. In other words, only those Appeals and stay Application which are pending before the Tribunal before 6 August, 2014 would continue to be governed by the old provisions. The requirements set out in Section 129E of the Act as amended on 6 August 2014 have to be satisfied in regard to Appeals filed on or after 6 August, 2014. The contention of the learned consultant for the appellant that the provisions of the amended provisions of Section 129E of the Act would apply to Appeals in which show cause notices were issued on or after 6 August, 2014 cannot, therefore, be accepted - appellant has not made the requisite pre-deposit and has made a plea that the unamended provision of Section 129E under which there was a discretion with the Tribunal to waive the requirement of pre-deposit on certain conditions, should be made applicable. Application dismissed. - CUSTOM DIARY NO. 54315 of 2018 - DEFECT MISC. NO. 12/2019 - Dated:- 27-2-2019 - MR. DILIP GUPTA, PRESIDENT AND MR.BIJAY KUMAR, MEMBER (TECHNICAL) Mr. D.K. Nayyar Mr. Ankur Puniya, Consultants for the Appellant Mr. Rakesh Kumar, Authorised Representat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, in the present case also the date of issue was much prior to the date of amendment, therefore not liable to pre-deposit. 3. It is vehemently submitted by Shri D.K. Nayyar, learned consultant for the appellant that since the show cause notice was issued to the appellant by the Foreign Trade Development Officer on 6 February, 2013, much prior to 6 August, 2014 when Section 129E of the Act was amended, the unamended provision of Section 129E would be applicable and, therefore, the Tribunal can examine the issue of waiver of pre-deposit as was the position that existed prior to the amendment made in Section 129E of the Act. In support of his contention, learned consultant has placed reliance upon a decision of a learned Judge of the Madras High Court in Fifth Avenue Sourcing Private Limited Vs. Commissioner of Service Tax, Chennai reported in 2015 (40) S.T.R. 71 (Madras) and submitted that this is the position of law till date. 4. Shri Rakesh Kumar, learned representative for the Department has, however submitted that a plain reading of Section 129E of the Act as amended on 6 August, 2014 would indicate that the amended provisions would apply to all Appeals filed befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 129E indicates that the Tribunal shall not entertain any Appeal unless the appellant has deposited 7 % of the duty, in case where duty or duty and penalty are in dispute, in pursuance of a decision or an Order appealed against. The second proviso stipulates that the provisions of this Section shall not apply to the stay Applications and Appeals pending before any Appellate Authority prior to the commencement of the Finance Act, 2014. 8. It needs to be noted that the Finance Act came into force on 6 August, 2014. It also needs to be noted that prior to 6 August, 2014 Section 129E of the Act required a person desirous of appealing, to deposit with the proper officer, the duty and interest demanded or penalty levied, but a discretion was vested with the Tribunal to dispense such deposit subject to such conditions as it may fit deem to impose so as to safeguard the interests of the Revenue if in the opinion of the Tribunal, the deposit of duty demanded or penalty levied would cause undue hardship to the person. 9. It is for this reason that it is sought to be contended by the learned consultant for the appellant that the Tribunal should, in the facts and circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of Appeal is a vested right and the right to enter a superior Court accrues to a litigant on and from the date on which the lis commences although it may be actually exercised when the judgment is pronounced. Such a right is governed by the law which prevails on the date of institution of the suit but the vested right of Appeal can be taken away by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. In paragraph 19, the High Court observed that the words in Section 35F of the Act would indicate that on and after the enforcement of the provisions of Section 35F of the Act, amended, w.e.f. 6 August, 2014, an appellant has to deposit a certain percentage of the duty and penalty as stipulated and unless the appellant does so, the Tribunal shall not entertain any Appeal and, therefore, this provision would apply to all Appeals which filed on and from the date of enforcement of the amendment to Section 35F of the Act. The High Court noticed that the intendment of Section 35F of the Act was further clarified by the second proviso to the Section as it stipulates that the provisions of the Section shall not apply to stay Applications and App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the right of appeal is a vested right and the right to enter a superior Court or Tribunal accrues to a litigant as on and from the date on which the lis commences although it may actually be exercised when the adverse judgment is pronounced. Such a right is governed by the law which prevails on the date of institution of the suit or proceeding and not by the law that prevails at the date of the decision 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. 19. Parliament while substituting the provisions of Section 35F of the Central Excise Act, 1944 by Finance Act (No.2) of 2014, has laid down that the Tribunal or the Commissioner (Appeals) shall not entertain any appeal unless the appellant has deposited the duty or, as the case may be, a penalty to the stipulated extent. These words in Section 35F of the Act would indicate that on and after the enforcement of the provision of Section 35F of the Act, as amended, an appellant has to deposit the duty and penalty as stipulated and unless the appellant were to do so, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that the notice to show cause was issued prior to the enforcement of Finance (No.2) Act, 2014. We find no merit in the constitutional challenge. The petition shall accordingly stand dismissed for the aforesaid reasons. ( emphasis supplied ) 12. The Delhi High Court in Pioneer Corporation relied upon the decision of the Allahabad High Court in Ganesh Yadav, after noticing that the decision of the Allahabad High Court was also followed by the Delhi High Court in Anjani Technoplast Ltd. Vs. Commissioner of Customs reported in 2015 (326) E.L.T. 472 (Del.) and in Suvidha Signs Studios Pvt. Ltd. Vs. Union of India reported in 2016 (336) E.L.T. 274 (Del.) The Delhi High Court noticed that the Appeal was filed before the Tribunal against the Order passed by the Principal Commissioner on 18 May, 2015. After the amendment made in Section 35F of the Central Excise Act and, therefore, would be governed by the amended provision. Paragraphs 3, 4 and 5 of the judgment are reproduced below: 3. Mr. Sachin Datta, learned Senior Counsel appearing for the petitioner, submitted that notwithstanding the decision of the Allahabad High Court in Ganesh Yadav v. Union of India - 2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant has made out a case for waiver of pre-deposit. 15. We are disturbed by such a statement having been made by the learned consultant for the appellant as reliance has been placed on a judgment that was reversed in the Appeal filed by the Department. In fact before the Division Bench of the Madras High Court two matters had come up for consideration. The first was the Appeal filed by the Department against the judgment rendered by a learned Judge of the Madras High Court in Fifth Avenue Sourcing Pvt. Ltd. and the second was Writ Petition bearing No. 1424 of 2015 filed by Dream Castle for a declaration that the amended Section 35F of the Central Excise Act, 1944 would apply only to show cause proceedings initiated on or after 6 August, 2014. The Appeal and Writ Petition were decided by a common judgment dated 18 April, 2016 and the judgment is reported in (2016) 94 VST 158 (Madras) [Dream Castle Vs. Commissioner of Service Tax 1, Anna Nagar, Chennai]. The Division Bench after referring to the judgments of the Supreme Court in N. Subbiah Choudhury and the judgment rendered by a Division Bench of the Allahabad High Court in Ganesh Yadav and certain other decisions held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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