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TMI Blog2012 (8) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... y jurisdiction under Section 84 of the Finance Act, 1994 and the stay applications filed therein seek waiver of pre-deposit of the adjudged dues and stay of recovery thereof. When these applications came up before this bench, a jurisdictional objection was raised on behalf of the department. It was submitted that the impugned orders-in-revision were passed after 19.8.2009 and hence not appealable to the CESTAT under Section 86 of the said Act. In other words, this Appellate Tribunal does not have jurisdiction to entertain the appeals (and stay applications) filed against revisionary orders passed by Commissioners after 19.8.2009. On this basis, it was prayed on behalf of the department that all the appeals along with the applications be dismissed as not maintainable. This prayer was vehemently opposed on behalf of the appellants. In this situation, a detailed hearing was held on the jurisdictional issue. 2. The learned Additional Commissioner (AR) submitted that, with the substitution of a new text for the old text of Section 84 of the Finance Act, 1994 with effect from 19.8.2009 under the Finance (No.2) Act, 2009 (Act No.33 of 2009), the remedy of revision, by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is connection, he relied on the Supreme Court's judgment dated 27.8.2001 in Appeals (Civil) No.5706 and 5707 of 2001 (M/s. Ambalal Sarabhai vs. M/s. Amrit Lal Co. Anr.). The learned Additional Commissioner (AR) argued that any right or privilege under Section 6 of the General Clauses Act was limited to that which accrued before the repealing Act came into operation. In the instance cases, the impugned orders were passed after 19.8.2009 and, therefore, there was no question of any right of appeal having accrued to the appellants under Section 86 (1) of the Finance Act, 1994 prior to the said date. Thus it was argued, Section 6 of the General Clauses Act was of no aid to the appellants. 4. Before proceeding to record the submissions made and arguments advanced on behalf of the appellants, we think it is necessary to reproduce the relevant provisions of law. Section 84 of the Finance Act, 1994 as it stood prior to 19.8.2009 reads as under: Revision of orders by the Commissioner of Central Excise. 84. (1) The Commissioner of Central Excise may call for the records of a proceeding under this Chapter in which an adjudicating authority subordinate to him has passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g appeals shall apply to such application. Explanation - For the removal of doubts, it is hereby declared that any order passed by an adjudicating officer subordinate to the Commissioner of Central Excise immediately before the commencement of clause (C) of section 113 of the Finance (No.2) Act, 2009 shall continue to be dealt with by the Commissioner of Central Excise as if this section had not been substituted. [emphasis added] Sub-sections (1) and (2) of Section 86 of the Finance Act, 1994 as it stood prior to 19.8.2009 reads as follows: Appeals to Appellate Tribunal 86. (1) Any assessee aggrieved by an order passed by a Commissioner of Central Excise under section 73 or section 83A, or section 84, or an order passed by a Commissioner of Central Excise (Appeals) under section 85, may appeal to the Appellate Tribunal against such order. (1A) .. (2) The Commissioner of Chief Commissioners of Central Excise may, if it objects to any order passed by the Commissioners of Central Excise under Section 73 or Section 83A or Section 84, direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the order. Sub-sections (1) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1897 dealing with the effect of repeal of Central enactments was squarely applicable to the amendment brought to Section 86(1) of the Finance Act, 1994. The counsel pointed out that, when the show-cause notice proposing to revise the order of the original authority was issued under Section 84 of the Finance Act, 1994, a right to contest the proposal and to file appeal against any prospective adverse order of the revisionary authority came to be vested in the noticee. This right of appeal was governed by the law prevailing on the date of issue of the said show-cause notice and the same continued to exist beyond 19.8.2009 and even beyond the date of passing of the revisionary order of the Commissioner till the date of filing of appeal against such order because it was not the intention of the legislature to abrogate or annul the vested right of appeal when it amended Section 86(1) of the Finance Act, 1994 by omitting the words and figures or section 84 from the text of Section 86 of the Act. According to the learned counsel, Explanation to the new Section 84 is enough indication of the legislative intent not to bar the continuance of revisionary proceedings beyond 19.8.2009 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Additional Commissioner (AR). The right of appeal was the right to enter a superior court and the same accrued to the litigant on the date of commencement of the lis and the same continued to exist ever since then, unaffected by the amendment in question. In this connection, the learned counsel relied on the Supreme Court's judgment in Garikapati Veeraya v. N. Subbiah Choudhry and Ors.: AIR 1957 S.C. 540. 6. The learned counsel representing the appellant in appeal No.ST/1334/2011 adopted the above arguments and sought to buttress some of them by citing a judgment dated 17.5.1905 passed by the Judicial Committee of the Privy Council in the case of The Colonial Sugar Refining Company Limited v. William Howe Irving [1905 AC 369]. The learned counsel also referred to the Supreme Court's judgment in Thirumalai Chemicals Ltd. vs. UOI: 2011 (268) E.L.T. 296 (S.C.) in the context of distinguishing between a substantive right and a procedural right. He submitted that the right of appeal under Section 86 of the Finance Act, 1994 was a substantive right which was prospective in operation. In his view, the department was treating Section 86 as a procedural provision. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.2009 when there was no right of appeal under Section 86 of the Act against such orders. Therefore all these appeals are liable to be dismissed as not maintainable. 12. The issue to be decided in this batch of cases is whether this Appellate Tribunal has jurisdiction to deal with the appeals, all of which are directed against revisionary orders passed after 19.8.2009 by Commissioners of Central Excise under the erstwhile Section 84 of the Finance Act, 1994. 13. It is not in dispute that the amendments in question were brought about under the Finance (No.2) Act, 2009 with effect from 19.8.2009. Prior to this date, Section 84 was a provision for revision, by Commissioner of Central Excise, of an order passed by an adjudicating authority subordinate to him. With the substitution of a new text (providing for appellate remedy for the department against an order passed by an adjudicating authority subordinate to Commissioner of Central Excise), with effect from 19.8.2009 for the old text of Section 84 which had provided for revision of such order, the remedy of revision by Commissioner came to be replaced by the remedy of appeal to the Commissioner (Appeals). But Explanation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in Garikapati Veeraya v. N. Subbiah Choudhry case (supra) laid down the following principles in para 23 of its judgment: (23) From the decisions cited above the following principles clearly emerge: (i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (ii) The right of appeal is not a mere matter of procedure but is a substantive right. (iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. (v) This vested right of appeal can be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e erstwhile Section 86 of the Act. In other words, these appeals are maintainable as per the apex court's ruling. 15.3. Yet another legal principle set out in the Hon'ble Supreme Court's judgment in Garikapati Veeraya v. N. Subbiah Choudhry and Ors. (supra) is that a vested right of appeal can be taken away only by subsequent enactment and, that too, by so providing expressly or by necessary intendment and not otherwise. This would mean that a vested right of appeal can be taken away by the legislature through an amendment of the law by using express words to that effect or by necessary intendment. In the present cases, nobody has a case that the right of appeal which was available to the assessees under Section 86 of the Finance Act, 1994 on the dates of commencement of revisionary proceedings was taken away expressly (i.e., by using express words) by the amending statute viz. the Finance (No.2) Act, 2009. The question now arises as to whether such right of appeal was taken away by necessary implication or intendment. This in our view is a matter for enquiry. One has to make an endeavour to gather the legislative intendment behind the amendment of law. We have got ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case, is the substitution of appellate remedy for revisionary remedy. Explanation to the new Section 84 is a part of the said scheme and, therefore, the effect of omission of section 84 from the text of Section 86 has necessarily to be considered with reference to the legislative intent underlying the Explanation. It is not possible for us to think that the legislature, having issued a mandate (in the form of Explanation to new Section 84) to the Commissioner of Central Excise to continue his revisionary proceedings beyond 19.8.2009 against the order passed by the subordinate authority before 19.8.2009, intended that the order which would be passed by the Commissioner at the end of the revisionary proceedings shall be final without a legal remedy. As rightly observed by this Tribunal in the case of Bhagwati Gases Ltd. vs. CCE - 2008-TIOL-879-CESTAT-DEL (supra), the law cannot be considered to leave a person remediless. It has been argued on behalf of the department that the remedy available against a revisionary order passed by Commissioner of Central Excise after 19.8.2009 lies in the writ jurisdiction of High Court. The meaning of this argument is that an asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent intention appears, the repeal shall not (a) (b) (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, ..as if the repealing Act had not been passed. The underlined clause of Section 6 indicates that the invocation of the Section entails an enquiry as to different intention'. In State of Punjab v. Mohar Singh Pratap Singh (supra), the Hon'ble Supreme Court considered the scope of such enquiry and held: Whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clause Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Finance Act, 1994 under Section 113 of the amending statute did not, in the absence of a different legislative intention, affect the right of appeal which accrued to these appellants under the old Section 86 of the Finance Act, 1994 on the dates of institution of revisionary proceedings against them under the old Section 84, (b) that such omission did not affect any legal proceeding or remedy in respect of such right of appeal and (c) that such legal proceeding or remedy could be instituted, continued or enforced as if the amending statute had not been passed. The present appeals and applications fall within the ambit of legal proceeding or remedy in respect of the right of appeal which had accrued to the appellants as early as on the dates of issuance of the revisionary show-cause notices under the old Section 84 of the Finance Act, 1994 and had continued to remain vested in them. In other words, these appeals and applications are maintainable by virtue of Section 6 of the General Clauses Act also. 19. We could not find any support to the appellants from D.O.F. No.334/13/2009-TRU dated 6.7.2009 which said: All cases decided before this date (19.8.2009) would conti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Against the Tribunal's order, the landlord moved the High Court and the High Court held in his favour. Ultimately, the tenant was before the Supreme Court. Before the apex court, the landlord claimed a vested right under the Rent Control Act and contended that, by virtue of Section 6 of the General Clauses Act, the proceedings of the Rent Control Court could continue as if the amendment of the Act had not come into effect. In its judgment, the apex court held as under: As a general rule, in view of Section 6, the repeal of a statute, which is not retrospective in operation, does not prima facie affect the pending proceedings which may be continued as if the repealed enactment were still in force. In other words such repeal does not affect the pending cases which would continue to be concluded as if the enactment has not been repealed. In fact when a lis commences, all rights and obligations of the parties gets crystalised on that date. The mandate of Section 6 of the General Clauses Act is simply to leave the pending proceedings unaffected which commenced under the unrepealed provisions unless contrary intention is expressed. We find Clause (c) of Section 6, refers th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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