9911796707
TMI Blog2025 (2) TMI 1113X X X X Extracts X X X X X X X X Extracts X X X X ..... itle shall be accordingly amended. 2. This appeal has been filed by the assessee under Section 35G of the Central Excise Act, 1944 as made applicable to service tax matters by virtue of Section 83 of the Finance Act, 1994. 3. In this appeal the assessee challenges the order passed by the Customs, Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata (the Tribunal) dated 13.05.2015 and the rectified order dated 20.07.2015 in Appeal No. ST-76429/2014. 4. The appeal was admitted on 15.12.2015 on the following substantial questions of law:- [1] Whether the appellant's right of appeal continues to be governed by the appellate provisions of the Central Excise Act, 1944 as they existed on the date of issuance of the show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the appeal for non-compliance of the statutory requirement under Section 35F of the Central Excise Act, relied upon two decisions of the Co-ordinate Bench of the Tribunal in the case of AI Champdani Industries Murlidhar Ratanlal Exports Limited VS. CCE dated 5.1.2015. The contention of the appellant/assessee is that the appellant's right to file an appeal continues to be governed by the appellate provisions of the Central Excise Act and as they existed on the date of the issuance of the show cause notice dated 25.09.2008, 19.03.2009 and 10.08.2009 and the provisions of Section 35F substituted with effect from August 06, 2015 has no application to the case of the assessee. This issue is no longer res integra and has been settled in the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6/8/2014. In all other cases, the main amended provision would apply. The reason for such a proviso was necessitated so as to obviate a situation whereby, applications pending before the appellate authority or tribunal would become infructuous on account of the amendment made to Section 35F as the amendment has a retrospective effect. Parliament was also conscious of the fact that as on 6/8/2014, many appeals would be pending before various appellate authorities throughout the country where applications for exercise of discretion of such appellate authorities regarding pre-deposit of duty or penalty had to be considered and disposed of. Therefore, Parliament was vigilant to ensure that the appellate authority or tribunal would continue to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situation, the main amended Section 35F would apply and a pre-deposit as per amended provision would have to be made. In the light of the above decision, all cases not covered under the second proviso, the main amendment and main amended Section 35F would apply irrespective of as to when the lis has commenced. The date on which the lis has commenced in each case has no bearing on the amendment as it has retrospective effect and even if the lis has commenced prior to the date of amendment and it had not been filed on that date, even in such a situation the amended Section 35F would apply and a pre-deposit as per amended provision would have to be made. The summary of the conclusions in the said decision is contained in paragraph 34 of the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has retrospective operation and is not restricted to only prospective cases. It applies to all lis which have commenced prior to or after the enforcement of the amendment, except to cases covered under the second provisothereof. (4) That in view of the insertion of second proviso to amended Section 35F of the Act, it is held that the same is in the nature of a saving clause, keeping intact the earlier provision of Section 35F to be made applicable to circumstances noted under the second proviso. That in all other cases not covered under the second proviso, the amended Section 35F is applicable as it has a retrospective operation. Such a legislation by amendment having a retrospective operation is a valid piece of legislation. (5) It i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
