2015 (11) TMI 1425 - AT - Service Tax

Waiver of pre deposit - Mandatory pre deposit - Section 35F - Held that - Supreme Court in the case of Hoosein Kasam Dada (India) Ltd. Vs. The State of Madhya Pradesh and Ors. 1953 (2) TMI 35 - SUPREME COURT OF INDIA was considering the provisions of Central Provinces and Berar Sales Tax Act, 1947 - provisions of section 35F would not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of Finance Act 2014 was not made while amending the relevant provisions in the Sales Tax Act. In the absence of any specific provisions regarding applicability of the amendment to the cases pending before the date of amendment, Hon ble Supreme Court considered the issue and interpreted the provisions. In the present case, the legislative intention clearly comes out from that second proviso and the section is very clear and provides that the amendment would not apply only to the stay applications and appeals pending before any appellate authority which means that any stay applications/ appeals filed on or after 06.08.2014, the amended section would be applicable. - contention of both the appellants that they are not liable to make mandatory penalty of 7.5%/10% as directed in the provisions of Section 35F cannot be accepted. However in the interest of justice, both the appellants are required to be given time to make the payment - Decided partly in favour of assessee.

Summary

Issues Involved:
Appeal defect due to non-deposit under Section 35F of Central Excise Act 1944, applicability of amendment to cases arising before the amendment date.

Issue 1: Appeal Defect Due to Non-Deposit under Section 35F
In two appeals, the issue arose regarding a defect in the appeal due to non-deposit of 7.5% of the duty demanded as required under Section 35F of the Central Excise Act 1944. The appellants argued that the amendment to Section 35F would not be applicable to them as the "lis" had arisen before the amendment date. In one case, the appellant only submitted a letter, and in the other, a stay application was filed without depositing the amount. The learned CA cited a Supreme Court case where it was held that amended sections cannot be applied to cases where the dispute arose before the amendment.

Issue 2: Applicability of Amendment to Cases Arising Before the Amendment Date
The Tribunal analyzed the provisions of Section 22 of the Central Provinces and Berar Sales Tax Act, 1947, both before and after the amendment, to understand the impact of amendments on appeals. Similarly, the provisions of Section 35F of the Central Excise Act 1944 were examined, particularly the proviso stating that the amendment would not apply to stay applications and appeals pending before the commencement of the Finance Act 2014. The Tribunal referred to a previous order where it was held that the amended provisions would apply to stay applications/appeals filed after a specific date.

In conclusion, the Tribunal rejected the appellants' contention that they were not required to pay the mandatory penalty under Section 35F. However, considering the newness of the provision to the appellants, they were granted 8 weeks to deposit the amount. The second appellant's stay application was rejected. The Tribunal emphasized that the amended section would apply to appeals filed after a certain date, and compliance was required within the stipulated timeframe for both appellants.