2015 (10) TMI 111 - AT - Service Tax

Waiver of pre deposit - Mandatory pre deposit - Held that - Last proviso of Section 35F is very clear and it clearly provides that in respect of stay applications and appeals pending before any appellate authority, the provisions of this Section shall not apply. This shows that the intention of the legislature clearly is that irrespective of the date of commencement of lis, the provision of the Section as amended shall apply. By clearly stating that in which cases the Section shall not apply, the legislature has made the intention very clear. It cannot be presumed and to be presumed that the legislature was not aware that while enacting this proviso, it may affect the vested rights of those cases wherein the show-cause notice had been issued earlier or the orders were passed earlier. But for this provision, a view could have been taken or at least canvassed and considered but in view of this specific provision and when the necessary intendment in our opinion has been expressly provided, the decision of the Hon ble Supreme Court relied upon by the learned CA is not applicable. - Tribunal being a creature of statute, cannot go into the question as to whether a vested right has been affected and whether the provision is ultra virus. This is under the exclusive jurisdiction of the High Courts and the Supreme Court and this Tribunal is not the forum. On this ground also, the submissions made by the appellants have no merit and have to be rejected. - Decided against assessee.

Summary

Issues Involved:
Interpretation of Section 35F of the Central Excise Act, 1944 regarding pre-deposit requirements for filing an appeal.

Analysis:

1. Stay Application and Pre-Deposit Requirement:
The case involved a stay application where the requirement of pre-deposit was initially waived. However, a memo filed by the departmental representative pointed out that the appellant should have deposited 7.5% of the duty demanded. An interim order was passed recalling the earlier order, and the matter was listed for hearing.

2. Interpretation of Section 35F:
The appellant argued that the pre-deposit requirement should not apply to cases where proceedings had started before the amendment to Section 35F came into effect. The appellant relied on the case law and fundamental principles of English law to support the argument that the right to appeal is a vested right that cannot be taken away retroactively.

3. Provisions of Section 35F:
The Tribunal analyzed the provisions of Section 35F, emphasizing the last proviso exempting stay applications and appeals pending before any appellate authority from the pre-deposit requirement. The Tribunal concluded that the legislature's intention was clear that the provision of Section 35F as amended would apply irrespective of the commencement date of the proceedings.

4. Jurisdiction of the Tribunal:
The Tribunal clarified that as a statutory body, it cannot delve into the question of whether a vested right has been affected by the provision. Such matters fall under the jurisdiction of the High Courts and the Supreme Court. Therefore, the Tribunal rejected the appellant's argument on the grounds of lack of merit.

5. Decision and Compliance:
Ultimately, the Tribunal ruled that since the appeals were filed after the effective date of the amendment, the appellants were required to deposit 7.5% of the duty/tax demanded. The appellants were granted 8 weeks to comply with the statutory requirement and report back to the Tribunal.

In conclusion, the judgment highlighted the importance of statutory provisions, legislative intent, and the limited jurisdiction of the Tribunal in interpreting and applying laws related to pre-deposit requirements for filing appeals under the Central Excise Act, 1944.