9911796707
TMI Blog2015 (6) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... s to begging the question. The new proviso is wholly inapplicable in such a situation and the jurisdiction of the authority has to be exercised under the old law which so continues to exist. Legislature has by implication made retrospective amendment. The learned counsel has also quoted the judgment of the Hon'ble High Court of Bombay in the case of Godrej Industries Ltd.(2014 (10) TMI 447 - BOMBAY HIGH COURT) dated 7th October 2014. We have gone through the said judgment. The facts of the case are entirely different. It was relating to the interest provisions under Section 11DD and is in respect of a period when there was no provision for interest. The facts in the present case are entirely different and we do not find application of the said case law. - Second proviso to amended Section 35F makes it very clear that the pending stay applications and appeals as on the date of commencement of the Finance (No.2) Act, 2014 will be governed by the old Section 35F and by implication, the substituted Section 35F will be applicable to all the appeals filed after the commencement of the Finance (No.2) Act, 2014. In view of the said position, we do not consider it necessary to go into t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner, on the other hand, submitted that the three judgments of the High Court quoted by the learned counsel are in the writ petition and the first case is in the nature of interim order and the same has been followed by the Hon'ble High Court of Kerala in the case of K.M. Motors (supra). Similarly, the third judgment is also in the writ petition and is in the nature of interim reliefs. None of these judgments have examined and decided the issue. It was further submitted that most of the judgments quoted by the learned counsel are based upon the judgment of the Hon'ble Supreme Court in the case of Hossein Kasam Dada (India) Ltd. (supra) and a perusal of para 10 of the said judgment would indicate that the Hon'ble Supreme Court has observed that the pre-existing right of appeal is not destroyed by the amendment if the amendment is not made retrospective by express words or necessary intendment. The learned AR further submitted that the second proviso to amended Section 35 F very clearly states that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No.2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of central excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing. Explanation. - For the purposes of this section duty demanded shall include, - (i) amount determined under section 11D; (ii) amount of erroneous CENVAT credit taken; (iii) amount payable under rule 57CC o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the penalty levied. Thus, the right of appeal was subject to the appellant depositing the duty demanded or penalty levied. However, the first proviso to the said Section provided that where in any particular case, the Tribunal is of the opinion that the deposit of the duty demanded or penalty levied would cause undue hardship to such person, the Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the interests of revenue. Thus, only in the cases where the Tribunal was of the opinion that the deposit of duty demanded or penalty levied would cause undue hardship, the Tribunal had discretionary power to dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the interests of revenue. Amendments in August 2014, have led to,- (i) that the appellant was required to deposit 7.5% of the duty in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute (we are not discussing the cases covered by clause (iii)); (ii) that the discretion earlier available with the Tribunal to dispense with the requirement of deposit of duty demanded or penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra 1.2 clarifies:- 1.2 The amended provisions apply to appeals filed after 6th August 2014. Section 35F of the Central Act, 1944 and Section 129E of the Customs Act, 1962 contains specific saving clause to state that all pending appeals/stay applications filed till the enactment of the Finance Bill shall be governed by the erstwhile provisions. 5. We have gone through the judgments of the Hon'ble Supreme Court in the case of Hossein Kasam Dada (India) Ltd. (supra). The relevant portion of para 10 is reproduced below:- A similar argument was urged before the Calcutta Special Bench in Sardar Ali v. Dolimuddin (supra), namely, that after the amendment the Court had no authority to entertain an appeal without a certificate from the Single Judge. Rankin C.J., repelled this argument with the remark at p. 643: Unless the contrary can be shown, the provision which takes away jurisdiction is itself subject to the implied saving of the litigants' right. In our view the above observation is apposite and applies to the case before us. The true implication of the above observation as of the decisions in the other cases referred to above is that the pre-existing right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority prior to the commencement of the Finance (No.2) Act, 2014 which in turn would imply that in respect of the stay applications and appeals filed before any appellate authority after the commencement of the Finance (No. 2) Act, 2014 the new provisions will apply irrespective of the date when the order-in-original/order-in-appeal or the show cause notice was issued or the period of dispute. 6. The learned counsel has quoted the order of the Hon'ble High Court for the State of Telangana and the State of Andhra Pradesh in the case of K. Rama Mohana Rao (supra). We have gone through the said order. The said order is an interim order and has been passed in a writ petition wherein first point is vires of the amendment of Section 35F of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. Second is retroactivity of this amendment viz., from 6th August 2014. In view of the fact that the High Courts have very wide jurisdiction particularly in writ petition and the fact that this is an interim order and no final judgment on the retroactivity of Section 35F has been taken by the Hon'ble High Court, in our view, this will not help the cause of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of the Hon'ble High Court of Bombay in the case of Godrej Industries Ltd.(supra) dated 7th October 2014. We have gone through the said judgment. The facts of the case are entirely different. It was relating to the interest provisions under Section 11DD and is in respect of a period when there was no provision for interest. The facts in the present case are entirely different and we do not find application of the said case law. 6.1 We have also gone through the judgment of the Hon'ble High Court of Karnataka in the case of Fosroc Chemicals (India) Pvt. Ltd. (supra). The learned AR has quoted para 9 to 13 of the said judgment to buttress the argument that since the new section has substituted old section, the amended section will have an effect as if the amended section has all along been there. We have also discussed in the earlier paragraphs that the second proviso to amended Section 35F makes it very clear that the pending stay applications and appeals as on the date of commencement of the Finance (No.2) Act, 2014 will be governed by the old Section 35F and by implication, the substituted Section 35F will be applicable to all the appeals filed after the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
