The amended section 35F of the Central Excise Act, 1944, requiring pre-deposit of a percentage of the duty demanded or penalty imposed, applies to appeals filed after its enforcement date.

S.C. DHARMADHIKARI, J.

1. This appeal is against an order passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai, dated 17th December, 2015.

2. The application for stay was dismissed because the appellant failed to comply with the mandatory condition of pre-deposit of 7.5% of the tax amount demanded. The Tribunal relied upon the amended section 35F of the Central Excise Act, 1944, which was brought on the Statute Book with effect from 6th August, 2014. The present appeal, which raises substantial questions of law, is, therefore, admitted on the following substantial questions of law:-

(1) The right of appeal being a vested right, whether the provisions of law as applicable at the commencement of the lis would apply or the amended provisions as on the date of filing of appeal would apply.

(2) Whether the second proviso to the amended section 35F can be interpreted as providing expressly or by necessary intendment that amended section 35F would apply to all appeals filed after 6.8.2014, even if the lis in respect of the same has arisen prior to 6.8.2014.

(3) Whether the amended section 35F of the Central Excise Act, 1944, w.e.f. 06.08.2014, reduces or puts fetters upon the vested right of appeal that an appellant has or the same increased the scope of the appellate package, thereby not impinging upon the vested right of the appellant?

3. With the consent of both sides and since a short point is involved, we took up the appeal for hearing and final disposal. It is, therefore, disposed of, by consent, finally by this order.

4. The appeal is preferred by the assessee who entered into an agreement dated 28th February, 2006, with the Board of Cricket Control in India (“BCCI” for short). In terms of this agreement, it was granted a licence of media rights on an exclusive basis in respect of international cricket matches, test matches and one day internationals conducted by the BCCI from 2006 to 2010. The licence authorised the appellant to uplink to the satellite, the live coverage of the match for the purpose of broadcasting it on television and internet. The claim of the appellant is that it sub-licensed its television rights to the entities mentioned in paragraph 5 of the Memo of Appeal by an agreement dated 1st March, 2006. There was an enquiry and investigation into this deal and on completion thereof, a show cause notice was issued to the appellant alleging that the transaction amounts to a taxable service rendered in terms of section 65(55a) of the Finance Act of 1994, and, therefore, the appellant ought to have discharged the service tax liability to the tune of Rs.246,22,73,817/- under the head of Intellectual Property Services. It is claimed that a reply was filed denying these allegations and contending that it was no taxable service. However, the adjudicating authority was not satisfied and on a personal hearing being granted, upheld the demand and imposed equivalent penalty. That order-in-original dated 16th June, 2015, was challenged by way of an appeal before the Customs, Excise and Service Tax Appellate Tribunal (for short “CESTAT”). An application was made before the CESTAT and it was claimed that the un-amended provision would apply and that would govern the appeal. If that governs the appeal, then, there is no requirement of deposit and a mandatory one of 7.5% of the tax amount demanded but there is a discretion in the Tribunal to waive this condition of pre-deposit on the appellant satisfying it that there is a strong prima facie, case and that undue hardship would be caused in the event the stay is refused.

5. Upon such an application, after hearing both sides, the Tribunal opined that the amended provisions are clear. Once there is a proviso and styled as second proviso to the sub-section of section 35F and so long as that governs and holds the field, it will not be possible to agree with the appellant. Holding thus and following the judgment of the Allahabad High Court in th