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TMI Blog2015 (12) TMI 1498X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and perhaps carried away by this view, it did not raise the issue regarding the financial hardship. However, the Tribunal is expected to exercise its discretion, vested under the unamended provisions of Section 35F of the Act. In this case, there is a failure to exercise the discretion, as the Tribunal had lost sight of the provision applicable to the case, having regard to the date of filing of the appeal. When the Tribunal had failed to exercise the discretion, this Court is bound to interfere. Further, the order passed by the Tribunal did not indicate that, it has considered the materials to come to a prima facie conclusion. Hence, the order is liable to be set-aside, as the order had been passed, invoking the amended provisions of Section 35F of the Act, whereas the law applicable to the case of the assessee is proviso to unamended Section 35F of the Act. - Matter remanded back - Decided in favour of assessee. - Civil Miscellaneous Appeal No. 2769 of 2015, Miscellaneous Petition No.1 of 2015 - - - Dated:- 11-12-2015 - M. Jaichandren And S. Vimala, JJ. For the Appellant : Mr. S. Raghunathan For the Respondents : Mr. V. Sundareswaran, Sr. Panel Counsel JUDGME ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax, for the period pertaining to 2003-2011, claiming that the overriding commission, on passenger air ticket sales and cargo sales, is liable to service tax. 3.1. The contention of the assessee / appellant was that the overriding commission, on passenger air ticket sales and cargo sales, does not come under the category of service tax , and it is covered under the expression export of services (Rule 3 (1) (iii) and 3 (2) of The Export Rules, 2005), and hence, the appellant is not liable to pay service tax. The further contention of the assessee was that, as there was no liability, the Revenue cannot demand any interest and penalty, as per Sections 75 to 77 of The Finance Act, 1994. 3.2. Rejecting the contention of the assessee, the Commissioner of Central Excise, directed the assessee to pay the service tax of ₹ 55,11,411/-. 3.3. The assessee preferred an appeal before the CESTAT / the first respondent herein, under sub-section (1) of Section 86 of The Finance Act, 1994. The first respondent, before taking the appeal on file and as a pre-condition to take the appeal on file, passed an order in Miscellaneous Order No.41314 of 2015, dated 15.10.2015, directing the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision. 4.6. The amended Section 35F of the Act prescribes mandatory pre-deposit of 7.5% or 10% for first stage or second stage appeal, of duty demanded, where duty demanded is in dispute or where the duty demanded and penalty leveied are in dispute and where penalty alone is in dispute, the pre-deposit shall be calculated on the penalty imposed. These amendments have become applicable to the appeals filed, after August 6, 2014, and all pending appeals / stay applications filed, prior to August 6, 2014 shall be governed by erstwhile provisions. Therefore, it is necessary to find out the erstwhile provisions governing the filing of the appeal, as the appeal in this case has been filed prior on 21.02.2014 i.e., prior to August 6, 2014. 4.7. It is settled law that, any amendment, particularly, in tax statute, has to be prospective, unless and until, the same has been made retrospective by the express provision in the amendment itself. A perusal of the amended Section, i.e., Section 35F of the Act, only indicates the cut-off date, i.e., 06.08.2014, on or after which pre-deposit is made mandatory to entertain the appeal. But, it is silent with regard to the law applicable to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r appealed against relates to any duty demanded in respect of goods which are not under the control 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. 5. Coming back to the order passed by the appellate authority, a perusal of the same would go to show that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the order is liable to be set-aside, as the order had been passed, invoking the amended provisions of Section 35F of the Act, whereas the law applicable to the case of the assessee is proviso to unamended Section 35F of the Act. 7. Therefore, for the aforestated reasons, Miscellaneous Order No.41314 of 2015, dated 15.10.2015, passed by the first respondent, is set-aside and the matter is remitted back to the Tribunal / first respondent to pass appropriate orders, afresh based upon the unamended provisions of Section 35F of the Act. 8. As there is an order of remand, the appellant is permitted to file appropriate Application, along with the relevant documents, to the plea regarding the financial hardship. On filing such Application and other relevant documents, (if it is otherwise in order) the Tribunal shall consider the same and pass appropriate orders thereon, within a period of two weeks, thereafter. It is made clear that, till the final order is passed by the Tribunal, including the Application to be filed by the appellant, the respondents shall not initiate any action, based on the earlier orders passed. 9. This Civil Miscellaneous Appeal stands disposed of, accordi ..... 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