2015 (4) TMI 813 - HC - Central Excise

Waiver of pre deposit - Constitutional validity of Amendment to Section 35F of the Central Excise Act, 1944 prescribing statutory pre-deposit of 7.5% / 10% and Circular No. 984/08/2014-CX - Held that - on the date of initiation of proceedings the right to appeal also accrues on that date, as appeal is in continuation of the original proceedings. In other words, on the date of initiation of lis the aforesaid amendment was not in force. However, during the pendency of this matter the aforesaid amendment is made. - The petitioner can very well approach the appellate authority with an application for waiver of pre-deposit. The appellate authority for the time being without insisting upon pre-deposit as per the amended provision, shall consider such application in accordance with law. This order will be effected provided the petitioner prefers an appeal within fifteen days from the date of receipt of a copy of this order and make such application. In case of failure this interim order will stand vacated. - Decided conditionally in favour of assessee.

Summary

Issues:
Challenge to the constitutionality of the amendment to Section 35F of the Central Excise Act, 1944 and Circular No. 984/08/2014-CX as ultra vires the Act.

Analysis:
The petitioner filed a writ petition challenging the constitutionality of Section 35F of the Central Excise Act, 1944, and Circular No. 984/08/2014-CX as ultra vires the Act. The High Court directed issuance of notice to the respondents to show cause why the writ petition should not be admitted. The points under consideration were the vires of the amendment and the retroactivity of the amendment from 06th August 2014. The Court found these points necessitated examination.

Regarding the retroactivity of the amendment, the Court noted that the proceedings had commenced with a show cause notice in 2013, predating the amendment. The Court opined that the right to appeal accrues on the date of initiation of proceedings, as an appeal is a continuation of the original proceedings. Although the amendment was made during the pendency of the matter, it may not be applicable to proceedings initiated prior to its enactment.

The Court granted interim relief, allowing the petitioner to approach the appellate authority with an application for waiver of pre-deposit. The appellate authority was directed to consider such applications without insisting on pre-deposit as per the amended provision. This order would be effective if the petitioner lodged an appeal within fifteen days from receiving a copy of the order and submitted the application. Failure to comply would result in the vacating of the interim order.

The High Court ordered the respondents to file counter affidavits within four weeks and directed the petitioner to file an affidavit in reply within two weeks thereafter. The matter was scheduled for a hearing six weeks from the date of the order.