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Judgment
Bharati Sapru, J—Heard Shri Sunil Gupta, learned Senior Advocate assisted by Shri Ashok Kumar, learned counsel for the petitioner and Shri B.K. Singh Raghuvanshi, learned counsel for the Union of India. The petitioner has filed this writ petition being aggrieved by two orders passed by the Tribunals; one of the order is dated 31-3-2015 and the other order is dated 14-8-2015.
In so far as the order dated 31-3-2015 is concerned, the petitioner contends that the authority concerned was not allowing the petitioner a proper opportunity of leading evidence and for cross-examination. In respect of that the petitioner had filed the Writ Petition No. 300 of 2015 in which the order was passed by the Division Bench of this Court on 1-4-2015 by which the High Court had granted the petitioner a proper opportunity of hearing in accordance with the principles of natural justice.
However, on the date when the order dated 1-4-2015 was passed, the petitioner was not aware of the order which was passed by the respondents on 31-3-2015 and infact the department itself was not aware of the order dated 31-3-2015, because the order was passed on 31-3-2015 but was only served on the petitioner on 10-4-2015. Therefore, virtually the order dated 31-3-2015 has been passed without following the direction passed in Writ Petition No. 300 of 2015 decided on 1-4-2015.
Since the dispute raised therein are the same and are not denied by the respondents, the respondents will now give a fresh hearing to the petitioner in pursuance of the order dated 1-4-2015 and show proper compliance of the same.
Insofar as the second order dated 14-8-2015 is concerned, by which the application filed under Section 35F of the Central Excise Act, 1944 has been disposed of and a demand has been made against the petitioner of a pre-deposit of 7.5 per cent of duty in pursuance of the order dated 31-3-2015, the matter is directly covered by a decision of a Division Bench of this Court in the case of Ganesh Yadav Vs. Union of India and Others(2015) 6 ADJ 250 : (2015) 320 ELT 711 : (2015) 39 STR 177 in which this issue has also been examined, especially with regard to retrospectively of Section 35F of the Act as amended from 6-8-2014. The relevant portion is quoted hereunder:
"....it is clear that appeals which are filed on and after the enforcement of the amended provision on 6th August, 2014 shall be governed by the requirement of pre-deposit as stipulated therein. The only category to which the provision will not apply that would be those where the appeals or, as the case may be, stay applications were pending before the appellate authority prior to the commencement of Finance (No. 2) Act, 2014."
It is well settled law that when an amendment is made the intendment of the legislature is to make an amendment prospectively unless it is specifically to be applied retrospectively. In this case the amendment has not been made retrospectively. A stipulation to that effect is usually contained in the amendment itself. The Tribunal in the impugned order dated 14-8-2015 has refused to go into that question and has simply relied on its own previous decision. It has not taken into consideration at all the Division Bench decision of this Court in the case of Ganesh Yadav (supra).
During the course of hearing of the case, learned counsel for the Union of India has himself placed the judgment of Ganesh Yadav (supra) before this Court. The respondent-authority will now therefore, reconsider his order taking into account the decision of Ganesh Yadav (supra). They will do so within a period of three months from the date of a certified copy of the order is being placed before him.
A certified copy of the order may be placed before the authority concerned within next ten days.
Thus, in conclusion, the commissioner will reconsider his decision dated 31-3-2015 in the light of the decision of this Court in the case of the petitioner as decided in Writ Petition No. 300 of 2015 passed on 1-4-2015 and the second order dated 14-8-2015 will be reconsidered in the light of the case of Ganesh Yadav (supra) within a period as indicated above.
No coercive action may be taken against the petitioner until fresh decisions are taken on merits and in accordance with law. The writ petition stands disposed of.