Amendment to Section 35F of CEA, 1944 are Constitutional: HC

Issue- 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.

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 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.

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 dated 16/9/2014 is ultra vires the Constitution of India and a similar Circular F.No.15/CESTAT/General/2013-14 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 are concerned commenced prior to 6/8/2014, which is the date on which the amendment has been enforced.

Held by Honorable Karnataka High Court

Summary of conclusions:

(1) It is held that in the instant case, the right to file an appeal, which is a substantive right granted under Sections 35 and 35B of the Act has not been amended and remains intact. That Section 35F of the Act as amended, consists of a mandatory requirement of pre-deposit for entertaining an appeal before the Appellate Authority i.e., before the Commissioner (Appeals) or the Appellate Tribunal as the case may be, is a piece of procedural legislation and does not fall within the realm of substantive law. Thus, Sections 35 and 35B do not confer an absolute right to file an appeal, but are subscribed or controlled by Section 35F of the Act. Hence, in the instant case, the right to file an appeal under Section 35 or 35B as the case may be is not an absolute right, but a conditional one.

(2) In view of a plethora of decisions of the Hon’ble Supreme Court, it is held that in the instant case, the right to file an appeal under Sections 35 and 35B of the Act is in no way affected by the amendment made to Section 35F of the Act requiring pre-deposit to be made at the time of preferring the :Such a condition regarding pre-deposit is made with a view to regulate the exercise of the right of appeal so as to enforce the order appealed against in case the appeal is ultimately dismissed.

(3) Section 35F of the Act has retrospective operation and is not restricted to only prospective It applies to all lis which have commenced prior to or after the enforcement of the amendment, except to cases covered under the second proviso thereof.

(4) That in view of the insertion of second proviso to amended Section 35F of the Act, it is held that the same is in the nature of a saving clause, keeping intact the earlier provision of Section 35F to be made applicable to circumstances noted under the second proviso. That in all other cases not covered under the second proviso, the amended Section 35F is applicable as it has a retrospectve operation. Such a legislation by amendment having a retrospective operation is a valid piece of legislation.

(5) It is reiterated that the second proviso in amended Section 35F is significant, which was absent in the provisions considered in Hoosien Kasam Dada and Garikapati Veerayya. The provisions of law considered by the Hon’ble Supreme Court in the aforesaid cases being not in pari materia to Section 35F of the Act under consideration and in view of the later judgments of the Hon’ble Supreme Court it is held that the ratio of those decisions are not applicable to the present case.

(6) As the amended Section 35F has a retrospective operation and none of the petitioners herein has filed an appeal prior to 5/8/2014 before the appellate authority or if the appeal has been preferred subsequently has not deposited the requisite pre-deposit before the appellate authority, as the case may be, they are required to comply with the conditions of the amended Section 35F.

(7) The circulars dated 16/9/2014 and 4/10/2014 are also upheld insofar as they are in consonance with this order.