Spectre of Section 35C(2A) rises again

Ever since the introduction of amended section 35F of CEA, the legal experts are divided as to whether the amended provision is applicable for the lis initiated prior to 6.8.2014. The executive who went up to the Supreme Court to get a declaration of the applicability of section 11AC for cases initiated prior to November,1996, and applicability of Section 76 when Section 78 is also invoked for cases pending till 2008 enactment has no doubt about the amended section 35F's applicability for all cases to be filed after 6.8.2014 . The ld. paper writer is complaining that the Hon'ble Court has given an order which was not asked for!.
The grievance of the party before the court was about the casual attitude in confirming the demand in the SCN without application of mind. The court accepted the Department Counsels contention about alternate remedy but considered the impact of the amended section 35F on such confirmation and left it to the CESTAT to consider the plea for waiver of pre deposit, if eligible. The ld. Paper writer questions the wisdom of the Court in the following words. “If the judgment of the Hon'ble High Court of Kerala were to remain unchallenged and hold field, for many more years to come, the new section 35F (or 129E) cannot come into force at all. They will remain dead letter. The new provisions can come into force only in respect of appeal arising from show cause notices issued on or after 6.8.2014. Is this a desirable or intended consequence?”.
The ld. Paper writer ought to have explained the difference between the cases decided and pending in appeal and that are pending for decision before the original and first appellate authority as on 6.8.2014 while finding fault with the decision of the High Court that put all cases initiated prior to 6.8.2014 on the same platform, whether appeal filed or not before 6.8.2014. The Hon’ble High Court now gave an option to the appellant to choose between the mandatory pre deposit or decision on stay application. An option is better than a single remedy.

Jayaprakash Gopinathan 20/04/2015