Maneesh Export (Eou) vs Commissioner Of Central Excise

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI

COURT No. II

APPEAL No.E/8602215 & E/86028/15

(Arising out of Order-in-Original No.Belapur/34/Bel-I/R-IV/COMMR/SFA/2014-15 dated 30/01/2015 & Belapur/35/Bel-I/R-IV/COMMR/SFA/2014-15 dated 28/01/2015 passed by Commissioner of Central Excise, Belapur)

For approval and signature:

Honble Mr. Anil Choudhary, Member (Judicial) Honble Mr. Raju, Member (Technical)

1. Whether Press Reporters may be allowed to see :No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the :Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy :Seen of the Order?

4. Whether Order is to be circulated to the Departmental :Yes authorities? ========================================

Maneesh Export (EOU) Appellant Vs. Commissioner of Central Excise, Respondent Belapur

Appearance: Shri.Ashok Kumar Singh, Advocate for appellant Shri.Sanjay Hasija, Supdt. (AR), for respondent

CORAM: Honble Mr.Anil Choudhary, Member (Judicial) Honble Mr. Raju, Member (Technical)

Date of Hearing : 25/08/2015 Date of Decision : /2015 ORDER NO

Per: Raju

1. The appellants, M/s.Maneesh Export, EOU are in appeal against Orders-in-Original No.Belapur/34/Bel-I/R-IV/COMMR/ SFA/2014-15 dated 30/01/2015 & Belapur/35/Bel-I/R-IV/COMMR/SFA/2014-15 dated 28/01/2015 passed by Commissioner of Central Excise, Belapur. The appellants were issued a notice for maintainable as the Registry has noticed a defect that proof of pre-deposit is insufficient.

2. Learned Counsel for the appellant argued that there was no necessity of mandatory pre-deposit in their case. Crux of their argument was that the amended provisions of Section 35F have come into effect on 06/08/2014. While in these cases, the orders-in-original have been issued after the said amendment. The show-cause notices were issued on 07/02/2014 & 28/09/2012 respectively. In this regard their argument was that old Section 35F would be applicable and there is no requirement of mandatory pre-deposit in their case.

3. It is noticed that earlier in the case of same appellant, the same issue has been decided by this Tribunal vide order No.A/1295-1297/15/EB dated 18/05/2015 in respect of order No.Belapur/15/BEL-I/R-IV/COMMR/SFA/2014-15 dated 16/12/2014. After considering the issue in details and after examining the various decisions cited by the appellant, this Tribunal observed as follows:

6. The learned counsel has quoted the order of the Honble High Court for the State of Telangana and the State of Andhra Pradesh in the case of K. Rama Mohana Rao (supra). We have gone through the said order. The said order is an interim order and has been passed in a writ petition wherein first point is vires of the amendment of Section 35F of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. Second is retroactivity of this amendment viz., from 6th August 2014. In view of the fact that the High Courts have very wide jurisdiction particularly writ petition and the fact that this is an interim order and no final judgment on the retroactivity of Section 35F has been taken by the Honble High Court, in our view, this will not help the cause of the appellant. This Tribunal is the creature of the Customs Act/Central Excise Act and cannot go into the issues as are being agitated before the Honble High Court. Similarly, we find in the case of A.M. Motors (supra), the Honble High Court of Karnataka has passed the order in a writ petition and has followed the said interim order of the Honble High Court of Telangana and Andhra Pradesh and here again the issue has not been decided.

Similar is the position in the case of Super Threading (India) Pvt. Ltd. (supra). As far as the judgment of the Honble Supreme Court in the case of Hossein Kasam Dada (supra) is concerned, we have already discussed in the earlier paragraph and in our view, the said judgment does not help the case of the appellants. On the contrary, it helps the Revenue to argue that the language of the second proviso to new Section 35F makes it very clear that the amended provisions will apply to all the stay applications and appeals filed after the commencement of the Finance (No.2) Act, 2014. We have also gone through the judgments relating to income tax in the case of Kerala Transporting Co. (supra) and Smt. G.A. Samanthakamani (supra). Both the cases are relating to income tax and the amendments therein are not pari material with the amendment made in Section 35F. Moreover, both the judgments are based upon the Honble Supreme Courts judgment in the case of Hossein Kasam Dada (supra) and as noted earlier, the said judgment helps the cause of Revenue and not the cause of the appellants. As far as this Tribunals judgment in the case of Samages Pharma Pvt. Ltd. (supra) is concerned, it was entirely in different context where the right of appeal was restricted from an amount of Rs.10,000/- to Rs.50,000/- and it is in that context that this Tribunal has taken the said view and the said judgment has no application to the facts of the present case.

Even in the said judgment, it has been observed that the amendment would not be retrospective in its operation so as to curtail, abrogate or take away the pre-existed statutorily vested substantive right of appeal unless the legislature either expressly or by necessary implication unambiguously intended so. In the present case, we have already come to the conclusion that the legislature has by implication made retrospective amendment. The learned counsel has also quoted the judgment of the Honble High Court of Bombay in the case of Godrej Industries Ltd. (supra) dated 7th October 2014. We have gone through the said judgment. The facts of the case are entirely different. It was relating to the interest provisions under Section 11DD and is in respect of a period when there was no provision for interest. The facts in the present case are entirely different and we do not find application of the said case law.

6.1 We have also gone through the judgment of the Honble High Court of Karnataka in the case of Fosroc Chemicals (India) Pvt. Ltd. (supra). The learned AR has quoted para 9 to 13 of the said judgment to buttress the argument that since the new section has substituted old section, the amended section will have an effect as if the amended section has all along been there. We have also discussed in the earlier paragraphs that the second proviso to amended Section 35F makes it very clear that the pending stay applications and appeals as on the date of commencement of the Finance (No.2) Act, 2014 will be governed by the old Section 35F and by implication, the substituted Section 35F will be applicable to all the appeals filed after the commencement of the Finance (No.2) Act, 2014. In view of the said position, we do not consider it necessary to go into the point made by the learned AR.

7. In view of the above position, we are of the view that the appeals filed by the appellants are not maintainable and are, therefore, dismissed. The miscellaneous applications filed under the old Section 35F are infructuous and are, therefore, dismissed.

4. We are in agreement with the observations of Tribunal. Following the said decision of this Tribunal, the appeal filed by the appellant is dismissed as non-maintainable for lack of compliance with the mandatory requirement under Section 35F.

(Pronounced in Court on )

(Anil Choudhary) Member (Judicial) (Raju) Member (Technical)

pj

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