TMI Blog2023 (5) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Appellate Authority could only be entertained, if it had deposited 25% of the additional demand as per amended provisions of Section 62 (5) of the Act. The application for waiver of pre-deposit was pending when the amendment came into force. The Appellate Authority was bound by the amendment as the application was to be decided in accordance with law. Hence, the conditions of pre-deposits, in any case, are procedural and the petitioner cannot claim that its right to appeal has to be considered as per the un-amended provisions of the Act - the judgment passed by Hon ble the Supreme Court in M/s Technimont Pvt. Ltd. s case [ 2019 (9) TMI 788 - SUPREME COURT] is very clear that right of appeal is a right granted by the statute a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court in Madras Bar Association vs. Union of India, 2020 SCC OnLine SC 962. Brief facts of the case are that the assessment proceedings with respect to the financial year 2010-11 were finalized on 01.03.2013 (Annexure P-2) and additional demand of Rs. 7,15,42,823/- was created. Against the said order, the petitioner-assessee filed its first appeal before the Deputy Excise and Taxation Commissioner (Appeals)-respondent No. 2 without making the pre-deposit. As per petitioner, along with the said appeal, an application (Annexure P-3) seeking waiver of additional pre-deposit was filed in view of the tax already paid, which was sufficient for the purpose of Section 62 (5) of the Act, as applicable at the time of filing the appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation filed by the petitioner for waiver of pre-deposit of 25% under Section 62 (5) of the Act. While passing the said order, it was observed as under:- (i) Additional demand is Rs. 7,15,42,823/-, as per impugned assessment order dated 01.03.2013. (ii) The appellant, admittedly, has not made any payment at the time of filing of appeal or even after that. (iii) The appellant was given opportunities on 14.12.2020 22.12.2020 to deposit 25% of the additional demand, towards pre-deposit, but, the appellant refused to make any payment. (iv) No payments were made by the appellant after the date of impugned assessment order dated 01.03.2013. The said order is being challenged by the petitioner by way of present petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A further stand is taken that the present case is of regular assessment and not a case of inspection and provisional assessment. Finally, it has been prayed that as per the judgments passed in M/s Technimont Pvt. Ltd. s case (supra), the present petition is liable to be dismissed. This Court in A.K. Sinha vs. Canara Bank and others, CWP No. 17779 of 2017 (decided on 18.07.2019) had held that if, an amendment is made during the pendency of the application, which was decided after the amendment, then the amended provisions of the Act would apply because unamended provisions would go in oblivion and would not be applicable. Heard, learned counsel for the parties. In the present case, while issuing notice of motion on 29.01.2021, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved that as per pre-amended provisions, 75% of the amount had to be deposited at the time of filing of the appeal. After the amendment, Appellate Tribunal, for the reasons to be recorded in writing, can reduce the amount, which shall not be less than 25% of the total amount due. The complete waiver of pre-deposit was done away with after the amendment. In this backdrop, the Division Bench held that after the amendment, the DRT has no jurisdiction to waive off the pre-deposit while deciding the appeal. In the facts of the present case, wording of Section 62 (5) of the Act, prior to its amendment, was as under:- No appeal shall be entertained unless such appeal is accompanied by satisfactory proof of the prior minimum payment of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Hence, the conditions of pre-deposits, in any case, are procedural and the petitioner cannot claim that its right to appeal has to be considered as per the un-amended provisions of the Act. The judgment passed by Hon ble the Supreme Court in M/s Technimont Pvt. Ltd. s case (supra) is very clear that right of appeal is a right granted by the statute and whatever conditions are imposed, the assessee is bound by those. In the present case, the amendment came into force w.e.f. 28.07.2015. At that time, application seeking waiver of the pre-deposit was pending. In this backdrop, the jurisdiction of the Appellate Authority to completely waive off the conditions of pre-deposit, as per un-amended provisions of Section 62 (5) of the Act, was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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