-: 1 :- IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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1 -: 1 :- R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07 TH DAY OF OCTOBER, 2015 BEFORE THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA WRIT PETITION NOs /2015 (T-TAR) C/w. W.P.NO.54017/2014 (T-RES), W.P.NO.54018/2014 (T-RES) & W.P.NO.21492/2015 (T-TAR) IN W.P.NOs /2015: BETWEEN: 1. M/S. HINDUSTAN PETROLEUM CORPORATION LTD., MANGALORE POL TERMINAL, VILLAGE BALA, VIA KATIPALLA, MANGALORE MR. V.K. JAIN, AGED 55 YEARS, GENERAL MANAGER (TAX), M/S. HINDUSTAN PETROLEUM CORPORATION LTD., CORPORATE OFFICE, NO.17, JAMSHEDJI TATA ROAD, P.O. BOX NO , MUMBAI PETITIONERS (BY SRI: G. SHIVADASS, ADVOCATE) AND: 1. UNION OF INDIA, MINISTRY OF FINANCE, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, 7 TH FLOOR, TRADE CENTER, BUNTS HOSTEL ROAD, MANGALORE

2 -: 2 :- 3. THE DEPUTY REGISTRAR, CUSTOMS EXCISE AND SERVICE, TAX APPELLATE TRIBUNAL, FKCCI BUILDING, K.G. ROAD, BANGALORE THE REGISTRAR, CUSTOMS, EXCISE AND SERVICE, TAX APPELLATE TRIBUNAL, WEST BLOCK 2, R.K. PURAM, NEW DELHI THE CENTRAL BOARD OF EXCISE AND CUSTOMS, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL REVENUE BUILDINGS, LP. ESTATE, ITO, NEW DELHI RESPONDENTS (BY SRI: K.M.NATARAJ, ADDL. SOLICITOR GENERAL A/W. SRI. JEEVAN J.NEERALGI, ADVOCATE) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO 1)HOLD THAT SEC. 35F OF THE CENTRAL EXCISE ACT, 1944 AS AMENDED BY SEC. 105 OF THE FINANCE ACT (NO.2), 2014 W.E.F. 6/8/2014 WHICH PROVIDES FOR MANDATORY PRE- DEPOSIT OF 7.5% FOR FIRST APPEALS AND 10% FOR SECOND APPEALS OF THE TOTAL TAX OR PENALTY DEMANDED, AS A MANDATORY CONDITION FOR ENTERTAINING AN APPEAL AS ILLEGAL AND VIOLATIVE OF ARTICLES 14, 19 (1) (g) AND 265 OF THE CONSTITUTION OF INDIA AND ETC., IN W.P.NO.54017/2014: BETWEEN: ***** PRESTIGE GARDEN CONSTRUCTIONS PRIVATE LIMITED, A COMPAMY INCORPORATED UNDER THE COMPANIES ACT, 1956 AND HAVING ITS REGISTERED OFFICE AT "THE FALCON HOUSE" NO.1 MAIN GUARD CROSS ROAD, INFANTRY ROAD, BANGALORE

3 -: 3 :- REP.BY ITS AUTHORISED REPRESENTATIVE MR. MANOJ KRISHNA J V.... PETITIONER (BY SRI: ARUN KUMAR.K, ADVOCATE) AND: 1. UNION OF INDIA, REPRESENTED BY THE FINANCE SECRETARY, NORTH BLOCK, NEW DELHI CENTRAL BOARD FOR EXCISE AND CUSTOMS (CBEC) DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, REPRESENTED BY THE DIRECTOR (JUDICIAL CELL), NORTH BLOCK, NEW DELHI CENTRAL EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, REPRESENTED BY THE REGISTRAR, PRINCIPAL BENCH, WEST BLOCK, NO.II, R.K. PURAM, NEW DELHI RESPONDENTS (BY SRI: K.M. NATARAJ, ADDL. SOLICITOR GENERAL A/W. SRI. JEEVAN J. NEERALGI, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH SECTION 35F OF THE CENTRAL EXCISE ACT OF 1944 AS AMENDED BY SECTION 105 OF THE FINANCE ACT OF 2014 AND THE SAID SECTION 105 OF THE FINANCE ACT OF 2014 AS BEING UNCONSTITUTIONAL. ******

4 -: 4 :- IN W.P.NO.54018/2014: BETWEEN: EXORA BUSINESS PARKS PRIVATE LIMITED, A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 AND HAVING ITS REGISTERED OFFICE AT "THE FALCON HOUSE" NO.1, MAIN GUARD CROSS ROAD, INFANTRY ROAD, BANGALORE , REPRESENTED HEREIN BY ITS AUTHORISED REPRESENTATIVE MR. MANOJ KRISHNA J V.... PETITIONER (BY SRI: ARUN KUMAR.K, ADVOCATE) AND: 1. UNION OF INDIA, REPRESENTED BY THE FINANCE SECRETARY, NORTH BLOCK, NEW DELHI CENTRAL BOARD FOR EXCISE AND CUSTOMS (CBEC), DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, REPRESENTED BY THE DIRECTOR (JUDICIAL CELL), NORTH BLOCK, NEW DELHI CENTRAL EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, REPRESENTED BY THE REGISTRAR, PRINCIPAL BENCH, WEST BLOCK, NO.II, R.K. PURAM, NEW DELHI RESPONDENTS (BY SRI: K.M. NATARAJ, ADDL. SOLICITOR GENERAL A/W. SRI. JEEVAN J.NEERALGI, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH

5 -: 5 :- SEC.35F OF THE CENTRAL EXCISE ACT OF 1944 AS AMENDED BY SEC.105 OF THE FINANCE ACT OF 2014 & THE SAID SECION 105 OF THE FINANCE ACT OF 2014 AS BEING UNCONSTITUTIONAL. IN W.P.NO.21492/2015: BETWEEN: ****** M/S HEWLETT PACKARD INDIA SALES PVT. LTD., NO.24, SALARPURIA ARENA, HOSUR MAIN ROAD, ADUGODI, BANGALORE BY ITS MANAGER SHESHADRI SRINIVASAN.... PETITIONER (BY SRI: G. SHIVADASS, ADVOCATE) AND: 1. UNION OF INDIA, MINISTRY OF FINANCE, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, LARGE TAX PAYERS UNIT, JSS TOWER: 10 FEET RING ROAD, BANASHANKARI III STAGE, BANGALORE THE DEPUTY REGISTRAR, CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, FKCCI BUILDING, K.G. ROAD, BANGALORE THE REGISTRAR, CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK 2, R.K. PURAM, NEW DELHI

6 -: 6 :- 5. THE CENTRAL BOARD OF EXCISE AND CUSTOMS, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL REVENUE BUILDINGS, LP. ESTATE, ITO, NEW DELHI RESPONDENTS (BY SRI: K.M. NATARAJ, ADDL. SOLICITOR GENERAL A/W. SRI. JEEVAN J.NEERALGI, ADVOCATE) ***** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO 1)DECLARE SECTION 35F OF THE CENTRAL EXCISE ACT, 1944 AS AMENDED BY SEC. 105 OF THE FINANCE ACT (NO.2), 2014 W.E.F WHICH PROVIDES FOR MANDATORY PRE- DEPOSIT OF 7.5% FOR FIRST APPEALS AND 10% FOR SECOND APPEALS OF THE TOTAL TAX OR PENALTY DEMANDED, AS A MANDATORY CONDITION FOR ENTERTAINING AN APPEAL AS UNCONSTITUTIONAL VIDE ANN-B AND ETC. THESE PETITIONS HAVING BEEN HEARD AND RESERVED ON 11/9/2015 AND IT BEING LISTED FOR PRONOUNCEMENT OF ORDERS TODAY, COURT PRONOUNCED THE FOLLOWING: O R D E R As common questions of law arise in these writ petitions, they have been heard together and are disposed of by this common order. 2. The petitioners have assailed amendment made to Section 35F of the Central Excise Act, 1944 (hereinafter referred to as the Act, for the sake of

7 -: 7 :- brevity), as amended by Section 105 of the Finance Act (No.2) 2014 (hereinafter referred to as 2014 Act, for the sake of convenience) with effect from 6/8/2014, which provides for monetary pre-deposit of 7.5% for first appeals and 10% for second appeals on the total tax or tax and penalty, demanded for entertaining such appeals. 3. In essence, the contention of the petitioners is that the requirement of the pre-deposit is in violation of Articles 14, 19(1)(g) and 265 of the Constitution of India. Therefore, they have sought a declaration that Circular No.984/08/2014-CX issued by the Government of India, Ministry of Finance, Department of Revenue (Central Board of Excise and Customs) New Delhi, dated 16/9/2014 is ultra vires the Constitution of India and a similar Circular F.No.15/CESTAT/General/ dated 4/10/2014, is also assailed. A direction is also sought to enable the petitioners to file their appeals without monetary pre-deposit of 7.5%, as the lis in so far as petitioners

8 -: 8 :- are concerned commenced prior to 6/8/2014, which is the date on which the amendment has been enforced. Background facts: 4. Briefly stated, the facts in W.P.Nos /2015, are that petitioner No.1 is a Government of India Company, registered with the Central Excise Department, engaged in the business of refining crude oil and marketing various petroleum products. Petitioners procure Motor Spirit, High Speed Diesel and Superior Kerosene Oil as well as Aviation Turbine Fuel. Petitioners have a terminal at Mangalore, which is a coordinator for requirements of the other companies such as, M/s.Mangalore Refineries and Petro Chemicals Limited, Mangalore ( MRPL for short). Pursuant to initiation of proceedings, petitioners received a show-cause notice from the Commissioner of Central Excise and Service Tax, wherein it was proposed to demand duty of Rs.56,93,40,593/- from MRPL. The said show-cause notice further proposed to impose penalty. The show-cause notice was replied

9 -: 9 :- to by the petitioners as well as by MRPL. Subsequently, the Commissioner of Central Excise and Service Tax passed an order-in-original, confirming the duty and penalty. The petitioner had not yet filed any appeal assailing the order-in-original. 5. In W.P.No.54018/2014 C/w. W.P.No /2014, the petitioner is a company incorporated under the provisions of the Companies Act, The petitioner is an assessee in respect of taxable service ( Renting of immovable property ). Petitioner was engaged in the business of leasing of space for commercial usage for the period from July 2007 to March Petitioner undertook construction of a project in the name and style of Exora Business Park. Petitioner availed credit of service tax paid on various input services and has also undertaken to comply with the procedures as stipulated in the Finance Act, 1994 read with the Service Tax Rules, 1994 as well as the Cenvat Credit Rules, 2004.

10 -: 10 :- The Audit Wing of the Service Tax Commissionerate audited the accounts of the petitioner for the period from April 2008 to March 2013 and a show-cause notice dated 24/10/2013 was issued demanding service tax amount of Rs.3,97,52,322/- from the petitioner on the premise that it was ineligible for availing Cenvat Credit as well as interest thereon. The Commissioner of Central Excise passed an order-in-original bearing No.24/2014 on 30/5/2014, holding that the petitioner was liable to pay the requisite amount. Petitioner has sought to assail that order passed under Section 35B of the Act. Petitioner filed an appeal on 6/8/2014. The CESTAT before whom the appeal has been filed has directed the petitioner to make pre-deposit of 7.5% of the demand in terms of the amended provision Section 35F which is assailed in these writ petitions. 6. Petitioner in W.P. No.21492/2015 is a Private Limited Company engaged in Trading and Servicing of Computer Systems, CPUs, Servers, Note

11 -: 11 :- books, printers etc, which provides all services such as maintenance, repairs of systems and also commissioning, installation of the same, as and when required by the customer and is registered with the Service Tax Department for payment of Service Tax in the categories of Management, Maintenance and Repair, Commercial Training or Coaching, Business Auxiliary Service, Business Support Service, Information Technology, Software Service, Transport of Goods by GTA with STC No.AAACC9862FST002. Petitioner has opted for registration as a Large Taxpayers Unit (LTU), in the year The audit of the accounts of the petitionercompany was conducted by the Commissioner of Large Taxpayers Unit, Bengaluru for the period from December 2006 to September Petitioner was asked to reverse certain Cenvat credits availed by it. Subsequently, a show-cause notice was issued on 30/9/2011 and a demand was made which was confirmed by the order-in-original bearing

12 -: 12 :- No.37/2013 ST (Commissioner), dated / Being aggrieved by that order, petitioner filed an appeal before CESTAT, Bengaluru. That authority after hearing the submissions of the petitioner has passed an order on 9/6/2014 in Order No.21335/2014. In the above background, the Assistant Commissioner, LTU, had by letter dated 27/3/2012, sought details of the cost of spares used in the warranty support service to customers and credit taken on such spare parts for the period from 1/1/2008 to 31/3/2013 with reference to order dated / , which is the order-in-original. Petitioner responded to the said clarification. Thereafter on 22/10/2013, show-cause notice was issued by the Commissionerate proposing to demand duty, interest as well as penalty which was replied to and order-in-original bearing No.94/14-15 was passed on 10/11/2014, confirming demand of service tax, interest and penalty. That order was received by the

13 -: 13 :- petitioner on 16/3/2015. By then, Section 35F of the Act had been amended with effect from 6/8/2014. Petitioner intends to file an appeal before the CESTAT. Under the amended provision, the mandatory predeposit of 7.5% of the demand of duty, interest and penalty has to be made by the petitioner, which is assailed in this writ petition. 7. Sections 35 and 35B of the Act provide for filing an appeal before the commissioner (Appeals) or before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Bengaluru, as the case may be. Section 35F of the Act deals with the deposit to be made i.e., pre-deposit before an appeal is entertained. That Section was amended with effect from 6/8/2014 vide Section 105 of the 2014 Act. Prior to 6/8/2014, appeals could be filed before the commissioner (Appeals) or CESTAT as the case may be, and the provision regarding pre-deposit was at the discretion of the appellate authority which could pass an order full or partial waiver of pre-deposit with or without

14 -: 14 :- conditions, keeping in mind the interests of Revenue. That provision was amended by the 2014 Act, by which the monetary pre-deposit of 7.5% for first appeals before the Commissioner (Appeals) and 10% for second appeals is prescribed. The petitioners being aggrieved by the amendment have filed these petitions. 8. Thus, in all these cases, the grievance of the petitioners is with regard to the validity of the amendment made to Section 35F of the Act, by which, discretion vested with the appellate authorities to waive or reduce the pre-deposit with conditions has been taken away and instead is substituted by a provision for a mandatory pre-deposit of 7.5%. Submissions: 9. The submissions made on behalf of the petitioners are as follows: a) Sri. Arun Kumar, along with Sri. Shivadass, learned counsel appearing for the petitioners,

15 -: 15 :- contended that amendment to Section 35F of the Act effected from 6/8/2014 adversely affects a substantive and vital right of appeal of the petitioners. Elaborating the said contention, it was submitted that Section 35F of the said Act as it stood prior to the amendment, had stipulated that, where an appeal was filed in respect of the demand made under the Act the appellant had to deposit with the appellate authority the duty demanded or the penalty levied. The proviso stipulated that the Commissioner (Appeals) or the Appellate Tribunal, as the case may be, could dispense with such deposit, subject to such conditions as the authority may deem fit to impose, so as to safeguard the interests of the revenue. Provided that, where such an application was filed for dispensing with the deposit of the duty demanded or penalty levied the same was to be decided within thirty days from the date of filing of the appeal. Therefore, discretion was given to the Appellate authority to dispense with the deposit of the duty demanded or penalty levied in case undue hardship would be

16 -: 16 :- caused to such appellant. But by the amendment effected from 6/8/2014, Section 35F of the Act categorically states that the Tribunal or the Commissioner (Appeals) shall not entertain any appeal, unless 7.5% of the duty or penalty in dispute is deposited. The first proviso states that the said deposit of 7.5% of the duty and penalty shall not exceed Rs crore, which is an upper limit. But the second proviso states that the amended section shall not apply to stay applications and appeals pending before any appellate authority filed prior to the commencement of the 2014 Act. As a result, the discretion vested with the appellate authority has been taken away and in its place, even if the appellant is not liable to pay any duty or penalty, is forced to deposit 7.5% of the duty and penalty. As a result of the said amendment, the right to file an appeal, which is a vested right of the appellant, particularly where the cause of action has arisen prior to the amendment is adversely effected. In other words, it was submitted that where the lis had commenced prior to

17 -: 17 :- the impugned amendment, the amended provision would not apply to such lis and the un-amended Section 35F would apply, particularly the first proviso thereof. It was, therefore, contended that in respect of those cases, where the matter had commenced long prior to the impugned amendment to Section 35F of the Act, it is the original and un-amended provision which would apply, irrespective of the fact as to whether the appeal was filed prior to 6/8/2014, on which date the amended provision took effect, or subsequent to that date. b) Referring to various decisions of the Hon ble Supreme Court, it was contended that insofar as the petitioners herein are concerned, the lis commenced long prior to the amendment of Section 35F and irrespective of whether the appeal was filed prior to 6/8/2014 or subsequently, the un-amended first proviso to Section 35F would apply. That the application of the amended section retrospectively would cause great injustice to those appellants, who

18 -: 18 :- had the right to file an appeal under the un-amended provision. In this context, heavy reliance was placed on the decision of the Hon ble Supreme Court in Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh and others (AIR 1953 SC 221) (Hoosein Kasam Dada) to contend that the preexisting right of appeal, which was vested with the petitioners has not destroyed by the amendment made to Section 35F of the Act. It was contended that the right of appeal from the decision of an inferior authority to a superior authority or Tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by the inferior authority. c) With reference to Garikapati Veerayya v. N.Subbaiah Choudhry and others (AIR 1957 SC 540) (Garikapati Veerayya), it was submitted that the right of appeal is a vested right and such a right to enter the superior court or tribunal accrues to the litigant and exists as on and from the date the lis

19 -: 19 :- commences and although it may be actually exercised when the adverse judgment is pronounced. That such right is to be governed by the law prevailing at the date of institution of the suit or proceeding and not by the law that prevails on the date of its decision or on the date of filing of the appeal. d) Reliance was placed on State of Bombay v. Supreme General Films Exchange Ltd. (AIR 1960 SC 980) to contend that an impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only; it impairs or imperils a substantive right and an enactment which does so is not retrospective, unless it says so expressly or by necessary intendment. e) Reference was made to Ramesh Singh v. Cinta Devi (AIR 1996 SC 1560) to contend that unless an amendment expressly or by necessary implication makes the provision applicable retrospectively, the right to appeal is crystallized on

20 -: 20 :- the institution of the application at the first instance and that vested right of appeal would not be dislodged by the enactment of a new Act or amendment. f) Reference was made to other decisions to contend that, by virtue of the amendment made to Section 35F of the Act, which stipulates a mandatory deposit of 7.5% of the duty or penalty in dispute, discretion granted to the Commissioner (Appeals) or Appellate Tribunal, as the case may, to relax the deposit has been taken away, which amendment would cause undue hardship to the assessees. It was further contended that the second proviso of amended Section 35F states that the amended provision would not apply to appeals filed prior to the commencement of the 2014 Act which was pending as on that date. But even if the lis had commenced prior to the impugned amendment and the appeals have not been filed as on 6/8/2014, then the amended provision would apply. This is discriminatory as the amendment classifies cases into two categories i.e., where the

21 -: 21 :- appeals have been filed prior to 6/8/2014 and where the appeals have not been filed prior to that date, even though the lis had arisen in all cases prior to the amendment. Thus, there is violation of doctrine of equality, was the submission. g) Placing reliance on certain other decisions, which shall be referred to, later, it was contended that the amendment to Section 35F of the Act must be interpreted in such a manner that where the lis had commenced prior to the amendment of 6/8/2014, the un-amended provision must be applied, irrespective of the date of filing the appeal. 10. Per contra the submission made on behalf of the respondents is as follows: a) Learned Addl. Solicitor General, Sri. K.M.Nataraj, along with Sri Neeralgi, appearing for Union of India and other respondents, contended that Section 35F does not confer any right of appeal to an assessee. Section 35B is the provision, which confers upon an aggrieved assessee a right to file an appeal,

22 -: 22 :- either before the Commissioner (Appeals) or before the Tribunal, as the case may be. Section 35B has not been amended. The right of appeal has remained intact and it has not been taken away by the impugned amendment. Section 35F only deals with the conditions to be complied with by an appellant in order that his appeal is entertained by the appellate authority. It is only those conditions which have been altered by the amendment. The conditions required to be complied with, by filing an appeal are not part and parcel of the right to file an appeal by an aggrieved party. It only regulates the filing of an appeal by an aggrieved party. The right to file an appeal is no doubt a substantive right, which has not been affected in the instant case. But the conditions to be complied with, in order that an appeal is entertained is a matter of procedure and there is no vested right in matters of procedure, was the submission. b) According to the Addl. Solicitor General, all that has been done by the impugned amendment is that discretion vested with the appellate authority to

23 -: 23 :- reduce or waive the mandatory deposit of entire duty demanded or penalty levied has been taken away and in its place only 7.5% of the disputed amount has to be deposited at the time of filing an appeal by the aggrieved party. This amendment in no way affects the substantive right of the petitioners herein to prefer an appeal. It was also contended that under the earlier provision, in case the appellate authority rejected the application filed under the un-amended proviso, then the entire demand of duty or penalty had to be deposited. But in the instant case, only 7.5% of the amount in dispute has to be deposited even though the duty or penalty to be paid by an appellant is much more, of course upto a maximum of Rs crore. Drawing my attention to the first proviso to amended Section 35F, it was contended that the Parliament has taken care to ensure that 7.5% of amount required to be deposited shall not exceed Rs crore.

24 -: 24 :- c) Further, the second proviso prescribes that the amendment shall not apply to stay applications and appeals pending before the appellate authority prior to the commencement of the 2014 Act. By this, the Parliament has clearly ensured that the amendment is effective in respect of all those appeals filed subsequent to 6/8/2014 irrespective as to when the lis commenced but to those appeals pending as on that date, original Section 35F would apply. Therefore, the second proviso saves all those appeals, which are pending before the Tribunal or the appellate authority and the amended provision would not apply to them. The second proviso is in the nature of a saving clause and as a result, Section 35F would apply to all appeals to be filed on or after 6/8/2014, irrespective of when the lis had commenced prior to that date as the amendment has a retrospective operation and that the presumption against retrospectivity does not apply in the instant case, was the submission. In this context, reliance was placed on Allied Motors Pvt. Ltd. v.

25 -: 25 :- Commissioner of Income Tax, Delhi [1997(3) SCC 472]. d) Referring to Section 5 of the General Clauses Act, 1897, it was contended that the amendment was assented to by the Hon ble President of India on 6/8/2014 and notified on the same day and therefore, would commence from midnight of 5 th and 6 th August of It was further contended by the Addl. Solicitor General that the original Section 35F is wiped out from the statute book, except to the extent that has been saved in the second proviso of the amended section. It was also contended that the second proviso is declaratory in nature. That the presumption against retrospective operation is not applicable to declaratory statutes. That declaratory statutes or provisions are inacted for the purpose of removal of doubts. Also, the presumption against retrospectivity may be overcome not only by express words in the provision, but also by circumstances sufficiently strong to displace it. But for the second

26 -: 26 :- proviso, the amended Section 35F would not have applied to the appeals pending before the appellate authority, though filed prior to the date of amendment. e) Referring to Hoosein Kasam Dada, it was contended, that the said decision turned on its own facts and the amendment of the relevant provision considered in that case. The said judgment is not applicable to the present case as the provisions in the present case and that case are not in pari materia. It was submitted that reference made to other decisions of various High Courts by placing reliance on Hoosein Kasam Dada by petitioners counsel was unnecessary and not binding and that this Court could come to an independent decision. It was, therefore, contended that when the case of Hoosein Kasam Dada does not apply to the facts of the present case, the decisions of the Kerala, Madras and Andhra Pradesh High Courts placing reliance on Hoosein Kasam Dada s case are not relevant. It was also contended that in those

27 -: 27 :- judgments, the legal provisions under consideration have not been examined thread-bare and hence, those decisions cannot be followed in these cases. It was submitted that there is no merit in these petitions and the same may be dismissed. 11. In reply, learned counsel for the petitioners contended that the second proviso is not declaratory in nature and that the judgments of the other High Courts relied upon by them would squarely apply to the present case. It was reiterated that the right to file an appeal would continue to apply to a lis as it would have accrued to the appellant on the date the lis commenced before the inferior court or Tribunal and that the conditions to be complied with while preferring an appeal cannot, by an amendment be made onerous, so as to defeat a right to file an appeal. Reiterating the earlier contentions, learned counsel for the petitioners submitted that the petitioners are entitled to reliefs in these writ petitions

28 -: 28 :- as the impugned Section 35F has no retrospective operation. Points for consideration: 12. Having heard learned counsel for the respective parties, the following points would arise for my consideration: 1) Whether Section 35F of the Act as amended, is a piece of substantive or procedural law, prescribing a mandatory pre-deposit at the time of filing an appeal, is an unreasonable condition? 2) Whether amendment made to Section 35 F of the Act has a retrospective operation? 3) What order? Legal Frame work: 13. At this stage, it would be useful to extract the relevant provisions of the Act, which have a bearing on the issues raised in these petitions.

29 -: 29 :- a) Section 35 of the Act provides the appellate remedy before commissioner (Appeals) and it reads as under: 35. Appeals to Commissioner (Appeals).- (1)Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than a Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals) hereafter in this Chapter referred to as the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order: Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of

30 -: 30 :- them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. b) Section 35B of the Act speaks about the circumstances under which an appeal is maintainable before an appellate tribunal, which reads as under: 35B. Appeals to the Appellate Tribunal.-(1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order- (a) a decision or order passed by the Commissioner of Central Excise as an adjudicating authority; (b) an order passed by the Commissioner (Appeals) under section 35A; (c) an order passed by the Central Board of Excise and Customs constituted

31 -: 31 :- under the Central Boards of Revenue Act, 1963 (54 of 1963) (hereafter in this Chapter referred to as the Board) or the Appellate Commissioner of Central Excise under section 35, as it stood immediately before the appointed day; (d) an order passed by the Board or the Commissioner of Central Excise, either before or after the appointed day, under section 35A, as it stood immediately before that day: Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to,- (a) a case of loss of goods, where the loss occurs in transit from a factory to a warehouse or to another factory, or from one warehouse to another, or during the course of processing of the goods in a warehouse or in storage, whether in a factory or in a warehouse;

32 -: 32 :- (b) a rebate of duty of excise on goods, exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India; (c) goods exported outside India (except to Nepal or Bhutan) without payment of duty; (d) credit of any duty allowed to be utilised towards payment of excise duty on final products under the provisions of this Act or the rules made thereunder and such order is passed by the Commissioner (Appeals) on or after the date appointed under Section 109 of the Finance (No.2) Act, 1998: Provided further that the appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where- (i) in any disputed case, other than a case where the determination of any

33 -: 33 :- question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (ii) the amount of fine or penalty determined by such order, does not exceed fifty thousand rupees. (1A) Every appeal against any order of the nature referred to in the first proviso to sub-section (1), which is pending immediately before the commencement of Section 47 of the Finance Act, 1984 (21 of 1984), before the Appellate Tribunal and any matter arising out of, or connected with, such appeal and which is so pending shall stand transferred on such commencement to the Central Government, and the Central Government shall deal with such appeal or matter under Section 35EE as if such appeal or matter were an application or a matter arising out of an application made to it under that section.

34 -: 34 :- (1B) (i) The Central Board of Excise and Customs constituted under the Central Boards, of Revenue Act, 1963 (54 of 1963) may by notification in the Official Gazette, constitute such Committees as may be necessary for the purposes of this Act. (ii) Every Committee constituted under clause (i) shall consist of two Chief Commissioners of Central Excise or two Commissioners of Central Excise, as the case may be. c) Section 35F deals with the deposit of duty demanded or duty and penalty levied at the time of filing an appeal and during the pendency of the appeal as it stood prior to the amendment. It reads as under: SECTION 35F. Deposit, pending appeal, of duty demanded or penalty levied. Where in any appeal under this Chapter, the decision or order 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

35 -: 35 :- 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.-

36 -: 36 :- (i) (ii) (iii) (iv) amount determined under section 11D; amount of erroneous CENVAT credit taken; amount payable under rule 57CC of Central Excise Rules, 1944; amount payable under rule 6 of CENVAT Credit Rules, 2001 or CENVAT Credit Rules, 2002 or CENVAT Credit Rules, 2004; (v) interest payable under the provisions of this Act or the rules made thereunder. d) The amendment effected from 6/8/2014 to Section 35F is as follows: SECTION 35F. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal. The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal- (i) under sub-section (1) of Section 35, unless the appellant has

37 -: 37 :- deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the Principal Commissioner of Central Excise or Commissioner of Central Excise; (ii) (iii) against the decision or order referred to in clause (a) of subsection (1) of Section 35B, unless the appellant has deposited seven and a half per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against; against the decision or other referred to in clause (b) of subsection (1) of Section 35B, unless the appellant has deposited ten per cent. of the duty, in case where duty or duty and penalty are in

38 -: 38 :- dispute, or penalty, where such penalty is in dispute, in pursuance or order appealed against: Provided that the amount required to be deposited under this section shall not exceed rupees ten crores: Provided further 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) Act, Explanation.- For the purposes of this section duty demanded shall include.- (i) (ii) (iii) amount determined under section 11D; amount of erroneous Cenvat credit taken; amount payable under rule 6 of the Cenvat Credit Rules, 2001 or the Cenvat Credit Rules, 2002 or the Cenvat Credit Rules, 2004.

39 -: 39 :- e) Subsequent to the amendment dated 6/8/2014, a Circular was issued by the Department i.e., Circular No.984/8/2014-CX, dated 16/9/2014, which inter alia deals with the procedure and manner of making pre-deposit and such other matters. On 14/10/2014, another Circular was issued by the respondent-department as certain parties had claimed exemption from the applicability of the amended provision. It was notified that no exemption has been provided with regard to appeals filed on or after 6/8/ Sections 35 and 35B state the circumstances under which an appeal could be filed by an aggrieved party, either before the Commissioner (Appeals) or the Tribunal, as the case may be. Those provisions have not been amended by the 2014 Act. 15. By virtue of amendment to Section 35F, two major changes have been made. Firstly, it is not mandatory for the appellant to deposit the entire duty and penalty levied as the case may be, but only 7.5%

40 -: 40 :- or 10% thereof as the case may be. Secondly, prior to the amendment, the appellant could seek dispensation of deposit of the entire duty demanded or penalty levied as the case may be, but under the amended provision, such a discretion granted to the Commissioner (Appeals) or the Appellate Tribunal has been taken away. Thirdly, there is a cap on the predeposit amount, as 7.5% or 10% as the case may be, of the disputed amount cannot exceed Rs crores. 16. According to petitioners counsel, the amendment does not apply to the case of the petitioners as their lis commenced prior to the coming into force of the amendment i.e., prior to 6/8/2014 and that they are governed under Section 35F as it stood prior to the amendment as according to them, the amendment does not have a retrospective effect. 17. What is significant in this case is that the second proviso of Section 35F as amended categorically states that the amendment would not

41 -: 41 :- apply to the stay applications and appeals pending before the Appellate Authority prior to the commencement of 2014 Act. The implication is that the proviso has distinguished between two categories of lis namely, a lis which has commenced from 6/8/2014 i.e., on the date, on which 2014 Act commenced and a lis which had commenced prior to that date. In respect of the lis which had commenced prior to 6/8/2014, the second proviso states that if prior to 6/8/2014, an appeal had been filed or a stay application had been filed and was pending before the concerned Appellate Authority, then the amendment would not apply. That means, where, in respect of a lis, which has commenced prior to 6/8/2014, an appeal had been filed or a stay application was filed prior to the said date and pending before the appellate authority on 6/8/2014 the earlier provision would apply and the Appellate Authority would continue to have the discretion to deal with the application filed under the first proviso to Section 35F as it stood prior to 6/8/2014. But in respect of those cases, where the

42 -: 42 :- lis though commenced prior to 6/8/2014 and where the appeals had not been filed prior to that date, the amendment does not expressly say anything in that regard and is silent. Thus, the proviso declares that the amended provision would not apply to stay applications or appeals pending before the appellate authority, prior to commencement of the amendment. The intention of insertion of the second proviso has to be discerned. Is it the intention of the Parliament that Section 35F, as it stood prior to the amendment, would apply to only those cases where the stay applications and appeals filed prior to 6/8/2014 are pending and therefore, the second proviso is in the nature of saving clause? In other words, is it, irrespective of when the lis has commenced, (even if prior to the amendment) if an appeal is filed on or after 6/8/2014, the amended provision would apply? Right of Appeal: 18. Before venturing to unravel this conundrum, it is necessary to take note of the concept

43 -: 43 :- of right of appeal, as the entire controversy in this case centers on that right, which according to petitioners, has been adversely affected on account of the impugned amendment. It is also necessary to distinguish between substantive law and procedural law and the decisions of the Hon'ble Supreme Court in that regard keeping in mind the same while considering the principles of statutory interpretation. This would have to be done in the back-drop of the decision of Hoosein Kasam Dada relied upon heavily by the learned counsel for he petitioners. a) In Garikapati Veeraya, it has been held by a majority of Judges on the Bench of the Hon ble Supreme Court that the legal pursuit of a remedy i.e., suit, appeal and second appeal are really steps in a series of proceedings, all connected by an intrinsic unity and are to be regarded as one legal proceeding. The right of appeal is not a mere matter of procedure, but is a substantive right. The institution of the suit carries with it the implication that the right of appeal

44 -: 44 :- then in force is preserved to the parties thereto till the rest of the career of the suit. 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, 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 the date of the filing of the appeal. Further, this vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. Thus, the Hon ble Supreme Court has recognized that a vested right of appeal can be taken away by an enactment if it provides so expressly or by necessary implication. If there is no such amendment made to the right of appeal, then it shall continue to be available to a party to a lis.

45 -: 45 :- b) But in Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393] (Ganga Bai), it has been held as under:- There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of civil nature and unless the suit is barred by statute one may, at one s peril, bring a suit of one s choice. It is no answer to a suit, howsoever frivolous to claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute. c) In this context, reference could also be made to a later judgment of the Hon ble Supreme Court in James Joseph Vs. State of Kerala [(2010) 9 SCC 642], wherein the Hon ble Supreme

46 -: 46 :- Court has formulated the following principles with reference to appeals. (i) An appeal is a proceeding where an higher forum reconsiders the decision of a lower forum, on questions of fact and questions of law, with jurisdiction to confirm, reverse, modify the decision or remand the matter to the lower forum for fresh decision in terms of its directions. (ii) The appellate jurisdiction can be limited or regulated by the legislature and its extent has to be decided with reference to the language employed by the statute conferring the appellate jurisdiction. (iii) The width of jurisdiction or the limitations on jurisdiction with reference to an appeal, does not depend on whether the appeal is a first appeal or a second appeal, but depends upon the limitations, if any, placed by the statute conferring the right of appeal. (iv) If the Legislature's intention is to limit the jurisdiction in an appeal, it may indicate such limits in the provision providing for appeal. Alternatively, it may

47 -: 47 :- expressly or impliedly incorporate the provisions of Section 100 of the Code, into the provision for appeals. (v) Generally statutory provisions for appeals against original orders or decrees (that is, first appeals) will not have any limitations and therefore rehearing on both law and fact is contemplated; and statutory provisions for appeals against appellate orders (that is, second appeals) will be restricted to questions of law. But such restriction is not on account of any legal principle that all second appeals should always be with reference to questions of law, but would depend upon the wording of the statute placing the restrictions upon the scope of second appeal. (vi) Where the statute does not place any limitations or restrictions in regard to the scope and width of the appeal, it shall be construed that the appeal provides a right of rehearing on law as well as facts. If the Legislature enacts a self-contained provision for second appeals, without any limitation upon the scope of the second appeal and excludes the possibility of

48 -: 48 :- reading the provision of Section 100 of the Code, into such provision, then, it will not be permissible to read the limitations of Section 100 of the Code into the special provision. d) In the instant case, it can be assumed that the right to file an appeal, which was available to the petitioners herein prior to 6/8/2014 under Sections 35 and 35B of the Act has been preserved intact, despite the enforcement of 2014 Act, which has amended, inter alia, Section 35F of the Act, with which we are concerned in this case. e) However, the contention of the learned counsel for the petitioners was that any change with regard to the conditions for filing of an appeal, which would adversely affect a potential appellant, in substance, affects the vested right to file an appeal. This contention was countered by learned Addl. Solicitor General by contending that conditions stipulated for filing an appeal have no nexus to the right to file an appeal. That in the instant case, all

49 -: 49 :- that has been done is to mandatorily deposit 7.5% of duty demanded or penalty levied at the time of filing an appeal and the discretion vested with the Tribunal or appellate authority with regard to pre-deposit has been taken away. Re: Hoosein Kasam Dada: 19. Learned counsel for the petitioners placed reliance on Hoosein Kasam Dada to buttress the submission that the pre-existent right to file an appeal under the earlier provision has not been destroyed by the amendment as the right of appeal from the decision of an inferior Tribunal to the superior Tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by the inferior court. As the sheet anchor of the petitioners is the ratio of Hoosein Kasam Dada by various High Courts while adjudicating on the amendment made to Section 35F of the Act, it would be necessary to refer to that decision in detail.

50 -: 50 :- a) The aforesaid case arose under the provisions of the Central Provinces and Berar Sales Tax Act, 1947 ( 1947 Act ) and the amendment made to that Act in the year Sub-section (1) of Section 22 of the said Act was the bone of contention between the parties therein. Sub-section (1) of Section 22 was originally expressed in the following terms: 22. (1) Any dealer aggrieved by an order under this Act may, in the prescribed manner, appeal to the prescribed authority against the order: Provided that no appeal against an order of assessment, with or without penalty, shall be entertained by the said authority unless it is satisfied that such amount of tax or penalty or both as the appellant may admit to be due from him, has been paid. The relevant portion of Section 22 as amended i.e., the proviso reads as under: Provided that no appeal against an order of assessment, with or without penalty

51 -: 51 :- shall be admitted by the said authority unless such appeal is accompanied by a satisfactory proof of the payment of the tax, with penalty, if any, in respect of which the appeal has been preferred. From the language of the proviso as it stood prior to the amendment, an aggrieved assessee had to pay only such amount of tax as he might admit to be due from him, whereas under the aforesaid amended proviso before an appeal could be admitted, it had to be accompanied by satisfactory proof of payment of tax in respect of which the appeal had been preferred. The contention of the assessee therein was, as the amendment had not been made retrospective, its right of appeal under the original sub-section (1) of Section 22 had remained unaffected and that accordingly, as it did not admit anything to be due, it was not liable to deposit any sum along with its appeal and the appellate Commissioner was bound to admit its appeal. That the Commissioner had no jurisdiction or power to reject it on the ground that

52 -: 52 :- the appeal had not been accompanied by any proof of payment of tax assessed against the appellant therein as required under the amended proviso. That the Board of Revenue and the High Court were in error in not directing the Commissioner to admit the appeal, was the contention of the appellant therein, before the Hon ble Supreme Court. b) In order to understand that contention, it would be necessary to narrate the relevant facts of the said case. The appellant therein had submitted sales tax return on 28/11/1947. Notice was issued to the assessee to produce evidence in support of the said return. Not being satisfied by the inspection of the account books as per the correctness of the return, the Sales Tax Officer was of the opinion that the taxable turnover exceeded Rs.2.00 lakh and submitted the case to the Assistant Commissioner of Sales Tax for assessment. The Assistant Commissioner heard the matter from 9/6/1949 and on 8/4/1950 made a best judgment assessment. Being

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