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TMI Blog2015 (10) TMI 2446X X X X Extracts X X X X X X X X Extracts X X X X ..... uty and if it failed to do so, CESTAT shall not entertain the appeal - Appellant deposited a sum of ₹ 4,95,532 on 8th May 2015 which was admittedly not 7.5% of the demanded duty as confirmed by Commissioner of Customs (Export) – Appeal dismissed – Decided in favour of Respondent. - CUSAA 19/2015 & CM APPL 21127/2015 - - - Dated:- 20-10-2015 - S. Muralidhar And Vibhu Bakhru, JJ. For the Appellant : Mr. Sushil K. Tekriwal and Dr. Mamta Tekriwal, Advocates For the Respondent : Mr. Satish Kumar, Senior standing counsel ORDER Dr. S. Muralidhar, J. 1. This appeal by Anjani Techoplast Limited, under Section 130 of the Customs Act, 1962 ( Act ), is directed against the impugned judgment dated 7th July 2015 passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 10th June 2014. He urged that the CESTAT erred in dismissing the appeal on account of non-compliance of the amended Section 129E of the Act. Reliance was placed on the decision of the Single Judge of the Kerala High Court in Muthoot Finance Limited v. Union of India 2015 LawSuit (Ker) 238 and the decision dated 12th June 2015 of the High Court of Judicature at Madras in Writ Petition No. 12546 of 2015 (Fifth Avenue Sourcing (P) Limited v. Commissioner of Service Tax). 5. Mr. Satish Kumar, learned Senior standing counsel for the Respondent, on the other hand referred to the relevant paragraphs of the decision of the Allahabad High Court in Ganesh Yadav v. Union of India (supra) and submitted that the legal position was clear that the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion challenging the constitutional validity of Section 35 F of the CE Act as amended with effect from 6th August 2014. The Division Bench of the Allahabad High Court noticed that prior to the said amendment, the CESTAT had a discretion to waive the amount of the pre-deposit either wholly or in part subject to certain conditions being fulfilled. The Assessee had to demonstrate, apart from a prima facie case, that it would be subject to undue hardship. The CESTAT could in those circumstances pass appropriate orders, subject to conditions, so as to safeguard the interests of revenue. This provision gave rise to further rounds of litigation before the High Court as well as the Supreme Court. In the above background, the Allahabad High Court hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y actually be exercised when the adverse judgment is pronounced. Such a right is governed by the law which prevails on the date of institution of the suit or proceeding and not by the law that prevails at the date of the decision or on the date of the filing of an appeal. Moreover, the vested right of an appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. 9. Dealing with the specific question as to whether the amended Section 35F of the CE Act would apply to the case of the Assessee, the Allahabad High Court held that the words in the amended Section 35 F indicated that on and after the date of its enforcement an Assessee in appeal was required to deposit t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequently filed should be decided by the appellate Tribunal. Secondly, the High Court appears to have proceeded on the basis that the interim order passed by the High Court of Telangana and Andhra Pradesh in K. Rama Mohanarao v. Union of India (supra) was consistent with the legal position that the institution of a suit carried with it an implication that all rights of appeal then in force are preserved to the parties. A demand of tax raised by way of a SCN does not get crystallised till there is an adjudication of the SCN. There can be no parallel therefore with the institution of a suit. Thirdly, the clear language of the second proviso to amended Section 35 F of the CE Act, the validity of which was not in challenge before either the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The wording of the second proviso to the amended Section 129 E is also unambiguous. It makes it clear that the amended provision would not apply to appeals and stay applications already pending before the appellate authority prior to the commencement of the Finance (No. 2) Act, 2014 , i.e. 6th August 2014. In other words, it would apply to all appeals filed on or after the said date. Therefore, what is to be seen is the date of filing of the appeal. If the appeal is filed on or after 6th August 2014 then the condition stipulated in the amended Section 129E of the Act has to be fulfilled for the appeal to be entertained. 12. The Court notes that as far as the present case is concerned, the CESAT had to apply the second proviso to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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