By TIOL News Service

CHENNAI, MAY 26, 2016: THE issue involved in the Writ Petition filed by an assessee and the Writ Appeal filed by the revenue against the Single Judge order is whether the mandatory pre-deposit of 7.5%/10% is prospectively applicable only for the cases where the Show Cause Notice proceedings were initiated on or after 06.08.2014.

It is the contention of the assessee is that the right of appeal available to a person is a vested right, which accrues on and from the date on which the lis commences, the date on which such right of appeal accrues should be the date on which the original cause itself arose. Therefore, the right so vested cannot be taken away retrospectively by an amendment.

However, the High Court held:

+ Despite all the conflicts, sometimes latent, sometimes patent and sometimes incorrigible, there has been uniformity of opinion at least on one thing, namely that the right of appeal is neither an absolute right, nor an ingredient of natural justice, and that it is only a statutory right which can be circumscribed by the conditions in the grant.

+ If one condition that was already available in the statute for the exercise of a right of appeal, is merely replaced by another condition, the same cannot be said to be retrospective, unless it is definitely shown that the amended condition is more onerous than the unamended condition. When the unamended condition gave only a chance or hope for an assessee to get a total waiver at the discretion of the Appellate Authority, the same cannot be equated to a vested right. A mere chance of convincing the Appellate Authority to exercise the discretion for the grant of a total waiver is no vested right. The amendment did not take away a right vested, but merely made a chance divested. What has now gone, is not the right, but the chance or hope.

+ Even the substantive provision of Section 35-F, after its amendment, is not capable of any other interpretation. The conclusions on the first contention was not on the basis of the second proviso. Therefore, it is not even necessary to find out whether the second proviso is exhaustive about the exclusions, or whether the second proviso is a substantive provision in itself or the extent to which the second proviso would control the substantive provision. Hence, the second contention of the petitioner is also rejected.

+ The contention in the writ appeal, based upon Sub-Sections (3) and (3A) of Section 85 of the Finance Act, 1994 and the interpretation given to the same by this Court in Winwind Power Energy Private Limited 2013-TIOL-863-HC-MAD-ST, does not have merit. The curtailment of a period of limitation, by way of amendment, takes away a vested right of appeal. An amendment that takes away the right of appeal stands on a different footing from an amendment that merely changes the condition precedent for the filing of the appeal.

+ The decision of the High Court of Andhra Pradesh in K.Rama Mohanarao is only a prima facie view. This decision has already been analysed while dealing with the first contention. Similarly, the decision of the Kerala High Court in Muthoot Finance Limited has also been analysed in great detail. With great respect to these Courts, the view taken by them is not agreed with for reasons indicated in great detail while dealing with the first contention.

+ Therefore, the writ petition seeking a declaration that the amended Section 35-F of the Central Excise Act 1944, is applicable only to show cause proceedings initiated on or after 6.8.2014 is liable to be dismissed. Writ appeal filed by the department is allowed.

(See 2016-TIOL-1009-HC-MAD-ST)