1. The petitioner claims to have provided between 2007-08 and 2011-12 the service of the construction of flats to Varanasi Development Authority under the Manyavar Kanshi Ram Saheri Garib Awas Yojna. On 19 September 2013, a notice to show cause was issued to the petitioner by the Additional Commissioner, Central Excise, Customs and Service Tax, Allahabad, seeking to demand an amount of Rs. 34.02 lacs as service tax on the ground that the petitioner was providing a taxable service for which it was not registered. The amount was demanded and stated to be recoverable under the proviso to Section 73(1) of the Finance Act, 1994 together with interest and penalty. In the course of the adjudication proceedings, an order was passed on 31 March 2015 by the Additional Commissioner, Central Excise, Customs and Service Tax, Allahabad, confirming the demand of service tax in the amount of Rs. 34.02 lacs. This was accompanied by a penalty under Sections 70, 76, 77 and 78 of the Finance Act, 1994. Section 35F of the Central Excise Act, 1944 the Act has been made applicable by virtue of Section 83 of the Finance Act, 1994. Section 35F of the Act was amended by Finance (No. 2) Act, 2014 and reads as follows:

"35F. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal. - The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal,--

(i) under sub-section (1) of section 35, unless the appellant has deposited seven and a half percent of the duty in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the Commissioner of Central Excise;

(ii) against the decision or order referred to in clause (a) of Sub-section (1) of section 35B, unless the appellant has deposited seven and a half percent of the duty, in case where duty or duty and penalty are in dispute, or penalty where such penalty is in dispute, in pursuance of the decision or order appealed against;

(iii) against the decision or order referred to in clause (b) of Sub-section (1) of section 35B, unless the appellant has deposited ten percent of the duty, in case where duty or duty and penalty are in dispute, or penalty where such penalty is in dispute, in pursuance of the decision or order appealed against:

Provided that the amount required to be deposited under this section shall not exceed rupees ten crores:

Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No. 2) Act, 2014.

Explanation.--For the purposes of this section "duty demanded" shall include,--

(i) amount determined under section 11D;

(ii) amount of erroneous Cenvat credit taken;

(iii) amount payable under rule 6 of the Cenvat Credit Rules, 2001 or the Cenvat Credit Rules, 2002 or the Cenvat Credit Rules, 2004."

2. Prior to the amendment of Section 35F of the Act, the provision as it stood earlier, was as follows:

"35F. Deposit, pending appeal of duty demanded or penalty levied.--Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of central excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied:

Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue:

Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filling.

Explanation.--For the purposes of this section "duty demanded" shall include,--

(i) amount determined under section 11D;

(ii) amount of erroneous CENVAT credit taken;

(iii) amount payable under rule 57CC of Central Excise Rules, 1944;

(iv) amount payable under rule 6 of CENVAT Credit Rules, 2001 or CENVAT Credit Rules, 2002 or CENVAT Credit Rules, 2004;

(v) interest payable under the provisions of this Act or the rules made thereunder."

3. The petitioner has sought in these proceedings a writ restraining the respondents from enforcing the mandatory requirement of a pre-deposit of 7.5% of the duty demanded in pursuance of the order of adjudication dated 31 March 2015. The second relief is for a declaration that Section 35F of the Act, as amended with effect from 6 August 2000, so as to provide a mandatory pre-deposit of 7.5% for first appeals and 10% to second appeals of the total tax or penalty demanded, is ultra vires or unconstitutional.

4. We would deal with the challenge to constitutional validity in the first instance. As a first principle of law, a right of appeal is a statutory right and it is open to the legislature which confers a remedy of an appeal to condition the appeal subject to compliance with conditions. A fiscal legislation can stipulate a requirement of pre-deposit as a condition precedent to an appeal to be entertained. The restraint on the power of the legislature to do so, is that the condition which is prescribed should not be so onerous so as to restrict or abrogate the right of appeal altogether. A condition which is unduly onerous will render the right of appeal illusory and would hence run the risk of being held to be arbitrary and of being violative of the fundamental right conferred by Article 14 of Constitution.

5. In Elora Construction Company Vs. The Municipal Corporation of Gr. Bombay and Others, AIR 1980 Bom 162 [LQ/BomHC/1979/126] , Honble Mr. Justice S.P. Bharucha, as his Lordship then was, upheld the requirement of a pre-deposit under the provisions of Section 217 of the Bombay Municipal Corporation Act, 1888. The decision in Elora Construction (supra) has been followed in several judgments of the Supreme Court subsequently to which a reference would be shortly made.

6. In The Anant Mills Co. Ltd. Vs. State of Gujarat and Others, AIR 1975 SC 1234 [LQ/SC/1975/26] : (1975) 2 SCC 175 [LQ/SC/1975/26] : (1975) 3 SCR 220 [LQ/SC/1975/26] , the Supreme Court held that the right of appeal is a creature of the statute and it is for the legislature to determine whether that right should be given unconditionally to an aggrieved individual or should be allowed subject to condition. In Vijay Prakash D. Mehta and Another Vs. Collector of Customs (Preventive), Bombay, AIR 1988 SC 2010 [LQ/SC/1988/402] : (1989) 66 CompCas 30 [LQ/SC/1988/402] : (1988) 18 ECC 347 [LQ/SC/1988/402] : (1989) 39 ELT 178 [LQ/SC/1988/402] : (1989) 175 ITR 540 [LQ/SC/1988/402] : (1988) 3 JT 435 : (1988) 2 SCALE 367 [LQ/SC/1988/402] : (1988) 4 SCC 402 [LQ/SC/1988/402] : (1988) 2 SCR 434 Supp : (1989) 72 STC 324 [LQ/SC/1988/402] : (1988) 2 UJ 609 , [LQ/SC/1988/402] the Supreme Court held that the right of appeal is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in all judicial or quasi-judicial adjudications. The Supreme Court observed that the right of appeal is a statutory right and can be circumscribed by the condition in the grant. This decision was followed in The Gujarat Agro Industries Co. Ltd. Vs. The Municipal Corporation of the City of Ahmedabad and Others Etc. Etc., AIR 1999 SC 1818 [LQ/SC/1999/475] : (1999) 3 JT 259 : (1999) 3 SCALE 40 [LQ/SC/1999/475] : (1999) 4 SCC 468 [LQ/SC/1999/475] : (1999) 2 SCR 895 [LQ/SC/1999/475] : (1999) 2 UJ 792 [LQ/SC/1999/475] : (1999) AIRSCW 1415 : (1999) 4 Supreme 358 .

7. The judgment in Elora Construction (supra) delivered by the Bombay High Court was cited with approval in the judgment of the Supreme Court in Gujarat Agro Industries (supra) and in a subsequent decision in Shyam Kishore and others Vs. Municipal Corporation of Delhi and another, AIR 1992 SC 2279 [LQ/SC/1992/579] : (1992) 5 JT 335 : (1992) 2 SCALE 403 [LQ/SC/1992/579] : (1993) 1 SCC 22 [LQ/SC/1992/579] : (1992) 1 SCR 349 Supp . The judgment in Gujarat Agro Industries (supra) involved a challenge to Section 406(e) of the Bombay Municipal Corporation Act as applicable in Gujarat which requires the deposit of tax as a pre-condition for entertaining an appeal. A limited waiver of tax was contemplated which was held not to be violative of Article 14 of the Constitution.

8. Subsequently, in Government of Andhra Pradesh and Others Vs. Smt. P. Laxmi Devi, AIR 2008 SC 1640 [LQ/SC/2008/487] : (2008) 2 JT 639 : (2008) 3 SCALE 45 [LQ/SC/2008/487] : (2008) 4 SCC 720 [LQ/SC/2008/487] : (2008) AIRSCW 1826 : (2008) 2 Supreme 472 , the Supreme Court upheld the constitutional validity of Section 47-A of the Indian Stamp Act as applicable in the State of Andhra Pradesh. The proviso stipulated that no reference would be made by Registering Officer unless an amount equal to 50% of the deficit duty was deposited. Following the earlier decisions, this requirement was held to be constitutionally valid.

9. Parliament while amending the provisions of Section 35F of the Act has required the payment of 7.5 percent of the duty in case the duty and penalty are in dispute or the penalty where such penalty is in dispute. In the case of an appeal to the Tribunal against an order passed by the Commissioner (Appeals), the requirement of deposit is 10% of the duty or as the case may be, the duty or penalty or of the penalty where the penalty is in dispute. The first proviso restricts the amount to be deposited to a maximum of Rs. 10 crores. Prior to the amendment, the Commissioner (Appeals) or the Appellate Tribunal were permitted to dispense with such deposit in a case of undue hardship subject to such conditions as may be imposed so as to safeguard the interest of the revenue. Stay applications and the issue of whether a case of undue hardship was made out, gave rise to endless litigation. There would be orders of remand in the litigative proceedings. All this was liable to result in a situation where the disposal of stay applications would consume the adjudicatory time and resources of the Tribunal or, as the case may be, of the Commissioner (Appeals). Parliament has stepped in by providing a requirement of a deposit of 7.5% in the case of a First Appellate remedy before the Commissioner (Appeals) or to the Tribunal. The requirement of a deposit of 10% is in the case of an appeal to the Tribunal against an order of the Commissioner (Appeals). This requirement cannot be regarded or held as being arbitrary or as violative of Article 14. Above all, as the Supreme Court held in Shyam Kishore (supra), the High Court under Article 226 of the Constitution is vested with the jurisdiction in an appropriate case to dispense with the requirement of pre-deposit and the power of the Court under Article 226 is not taken away. This was also held by the Supreme Court in P. Laxmi Devi (supra) in which the Supreme Court observed that recourse to the writ jurisdiction would not be ousted in an appropriate case. Whether the writ jurisdiction under Article 226 should be exercised, having due regard to the discipline which has been laid down under Section 35F of the Act, is a separate matter altogether but it is important to note that the power under Section 226 has not been, as it cannot be, abridged.

10. That leads the Court to the next aspect of the matter as to whether the requirement of pre-deposit would apply in a situation such as the present. The notice to show cause was issued on 19 September 2013. The case of the petitioner is that the amendment to Section 35F of the Act was brought into force with effect from 6 August 2014 and cannot retrospectively abridge or curtail the right of appeal which vested in the petitioner upon the issuance of a notice to show cause on 19 September 2013. While considering the merits of this submission, the basic principle of law which was laid down in the Constitution Bench judgment of the Supreme Court in Garikapatti Veeraya Vs. N. Subbiah Choudhury, AIR 1957 SC 540 [LQ/SC/1957/10] : (1957) 1 SCR 488 [LQ/SC/1957/10] would merit reference. Chief Justice Sudhi Ranjan Das speaking for the majority, after considering the law on the subject from the decision of the Privy Council in Colonial Sugar Refining Company Ltd. v. Irving (1905) AC 369 upto Sawaldas Madhavdas Vs. Arati Cotton Mills Ltd., AIR 1955 Bom 332 [LQ/BomHC/1954/162] : (1955) 57 BOMLR 394 deduced the following principles of law:

"(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved, to the parties thereto till the rest of the career of the suit.

(iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."

(emphasis supplied)

11. This principle was also laid down in an earlier decision in Hoosein Kasam Dada (India) Ltd. Vs. The State of Madhya Pradesh and Others, AIR 1953 SC 221 [LQ/SC/1953/19] : (1983) 13 ELT 1277 [LQ/SC/1953/19] : (1953) 4 SCR 987 [LQ/SC/1953/19] , where it was held as follows:

"...The true implication of the above observation as of the decisions in the other cases referred to above is that the preexisting right of appeal is not destroyed by the amendment if the amendment is not made retrospective by express words or necessary intendment. The fact that the pre-existing right of appeal continues to exist must, in its turn, necessarily imply that the old law which created that right of appeal must also exist to support the continuation of that right. As the old law continues to exist for the purpose of supporting the pre- existing right of appeal that old law must govern the exercise and enforcement of that right of appeal and there can then be no question of the amended provision preventing the exercise of that right."

(emphasis supplied)

12. In Jose Da Costa and Another Vs. Bascora Sadasiva Sinai Narcornim and Others, AIR 1975 SC 1843 [LQ/SC/1975/254] : (1976) 2 SCC 917 [LQ/SC/1975/254] , the Supreme Court held as under:

"31. Before ascertaining the effect of the enactments aforesaid passed by the Central Legislature on pending suits or appeals, it would be appropriate to bear in mind two well-established principles. The first is that while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment (see Delhi Cloth and General Mills Co. Ltd. vs. Income Tax CommissionerAIR 1927 242 (Privy Council) ).

The second is that a right of appeal being a substantive right the institution of a suit carries with it the implication that all successive appeals available under the law then in force would be preserved to the parties to the suit throughout the rest of the career of the suit. There are two exceptions to the application of this rule, viz. (1) when by competent enactment such right of appeal is taken away expressly or impliedly with retrospective effect and (2) when the court to which appeal lay at the commencement of the suit stands abolished [see Garikapatti Veeraya v. N. Subbiah Choudhry (supra) and Colonial Sugar Refining Co. Ltd. v. Irving (supra)].

(emphasis supplied)

13. In a later decision in Ramesh Singh and another Vs. Cinta Devi and others, (1996) 2 ACC 701 : (1996) ACJ 730 [LQ/SC/1996/465] : (1996) 3 AD 376 : AIR 1996 SC 1560 [LQ/SC/1996/465] : (1996) 5 JT 543 : (1996) 114 PLR 507 : (1996) 2 SCALE 782 [LQ/SC/1996/465] : (1996) 3 SCC 142 [LQ/SC/1996/465] : (1996) 2 SCR 1036 [LQ/SC/1996/465] : (1996) 2 UJ 61 , the Supreme Court observed as follows:

"344. In all these decisions the view taken is that unless the New Act expressly or by necessary implication makes the provision applicable retrospectively, the right to appeal will crystalize in the appellant on the institution of the application in the Tribunal of first instance and that vested right of appeal would not be dislodged by the enactment of the new Act..."

(emphasis supplied)

14. The Supreme Court in Mohd. Saud and Another Vs. Dr. (Maj.) Shaikh Mahfooz and Others, AIR 2011 SC 485 [LQ/SC/2010/1159] : (2011) 3 RCR(Civil) 617 : (2010) 11 SCALE 283 : (2010) 13 SCC 517 [LQ/SC/2010/1159] : (2010) 10 UJ 4993 : (2010) AIRSCW 5093 upheld the power of the legislature to curtail right of filing a letters patent appeal, in certain cases, by a subsequent enactment, by observing as under:

"8. It has been held in a catena of decisions of this Court that an appeal is a creature of a statute and not an inherent right vide Garikapati Veeraya v. N. Subbiah Choudhry (supra). This right of appeal can be taken away or curtailed by a subsequent enactment vide Kamal Kumar Dutta and Another Vs. Ruby General Hospital Ltd. and Others, (2006) 134 CompCas 678 [LQ/SC/2006/708] : (2006) 5 CompLJ 511 [LQ/SC/2006/708] : (2006) 7 JT 333 : (2006) 7 SCALE 668 [LQ/SC/2006/708] : (2006) 7 SCC 613 [LQ/SC/2006/708] : (2006) 70 SCL 222 [LQ/SC/2006/708] : (2006) 4 SCR 462 Supp .

9. The validity of Section 100-A C.P.C. has been upheld by the decision of this Court in Salem Advocate Bar Association Vs. Union of India (UOI), AIR 2003 SC 189 [LQ/SC/2002/1104] : (2003) 1 DMC 73 : (2002) 9 JT 175 : (2004) 8 SCALE 115 : (2003) 1 SCC 49 [LQ/SC/2002/1104] : (2003) 1 UJ 1 [LQ/SC/2002/1104] The Full Benches of the Andhra Pradesh High Court vide Gandla Pannala Bhulaxmi Vs. Managing Director, APSRTC and Another, (2003) ACJ 2004 [LQ/TelHC/2003/497] : AIR 2003 AP 458 [LQ/TelHC/2003/497] : (2003) 4 ALT 216 [LQ/TelHC/2003/497] : (2003) 2 APLJ 227 : (2003) 3 CTC 667 [LQ/TelHC/2003/497] , the Madhya Pradesh High Court in Laxminarayan Vs. Shivlal Gujar and Others, AIR 2003 MP 49 [LQ/MPHC/2002/896] : (2004) 1 JCR 203 [LQ/MPHC/2002/896] : (2002) 2 JLJ 327 [LQ/MPHC/2002/896] : (2002) 4 MPHT 463 [LQ/MPHC/2002/896] : (2002) 2 MPJR 405 [LQ/MPHC/2002/896] : (2003) 1 MPLJ 10 [LQ/MPHC/2002/896] , and of the Kerala High Court in Kesava Pillai Vs. State of Kerala, AIR 2004 Ker 111 [LQ/KerHC/2003/792] : (2004) 1 ILR (Ker) 1 : (2004) 1 KLT 55 [LQ/KerHC/2003/792] have held that after the amendment of Section 100-A in 2002 no litigant can have a substantive right for a further appeal against the judgment or order of a learned Single Judge of the High Court passed in an appeal. We respectfully agree with the aforesaid decisions."

15. A Full Bench of this Court in Pratap Narain Agarwal Vs. Ram Narain Agarwal and Others, AIR 1980 All 42 [LQ/AllHC/1979/461] recognised the power of the legislature to enact a law taking away a vested right of appeal. The Court held that right of appeal against rejection of objections under Section 47 CPC would stand impaired retrospectively, except in cases where execution applications stood decided or appeals were pending on the date of commencement of the Civil Procedure Code (Amendment) Act, 1976, in view of the saving clause. It was held that even in cases where execution applications were pending on the date the Amending Act came, the right to appeal was not saved. It is held as under:

"24. In the instant case, admittedly, the appeal had not been filed before the Amending Act came into force. Hence, out of the two categories made by the learned counsel, the first category should not apply. So far as the second category is concerned, we are not in agreement with his submission that in all cases where execution applications had been filed before Act 104 of 1976 came into force, the right to appeal had been preserved. On the interpretation of cl. (a) of S. 97(2) there is no dispute about the proposition that the pending appeals at the time of enforcement of the Act had been saved under it, but it does not appear correct that in all pending execution applications the right to appeal is preserved even in respect of a pending application on the date of enforcement of the said Act. The language of S. 97(2)(a) does not permit such an interpretation. Under this clause, the amendment made in S. 2(2) of the principal Act does not affect any appeal against the determination of any question as is referred to in S. 47. The expression "shall not affect any appeal", in our opinion, does not take within its sweep even the cases where execution applications were pending before the executing Court..."

(emphasis supplied)

16. The aforesaid conclusion was reached on the basis of the enunciation of law laid down in the Constitution Bench judgment of the Supreme Court in Garikapatti Veeraya (supra) and in the English decision in Hough v. Windus [(1884) 12 QBD 224, at page 237] by laying down as under:

"17. Now the question for enquiry is whether there is anything in Act 104 of 1976 demonstrating that the right to file appeal which accrued on the date of filing of the execution application was taken away. True it is as said in Hough v. Windus (supra), the statutes should be interpreted if possible, so as to respect vested rights. It is also correct at the same time that the golden rule of construction is that, in the absence of anything in the enactment to show that law should have retrospective operation, an Act should be construed so as to apply prospectively. These propositions are, however, subject to the control by the legislature. The legislature can enact a law taking away the vested right of appeal by making a provision to that effect or by expressing an intention to the contrary.

18. An appellate jurisdiction is the authority of a superior Court to review, reverse, correct or affirm the decisions of an inferior Court. An appeal is considered as continuation of the original suit rather (than) as the inception of a new action. A litigant may have a right to institute a suit unless specifically barred, but there is no right of appeal unless conferred. For filing a suit right is not required to be conferred by any statute whereas since the right of appeal is the right from the statutory provision by which it is created, such a right has got to be conferred. It does not inhere in a litigant. The right of appeal conferred or acquired has to be exercised only in the manner prescribed.

19. As already pointed out above, the legislature has authority to abridge a right to appeal at its discretion. The legislature may take away the right of appeal."

(emphasis supplied)

17. Thus, the principle of law which emerges is that the right of appeal is a vested right and the right to enter a superior Court or Tribunal accrues to a litigant as on and from the date on which the lis commences although it may actually be exercised when the adverse judgment is pronounced. Such a right is governed by the law which prevails on the date of institution of the suit or proceeding and not by the law that prevails at the date of the decision or on the date of the filing of an appeal. Moreover, the vested right of an appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.

18. Justice G.P. Singh in his treatise on Statutory Interpretation [12 Edition 2010 (page 524-525)] has succinctly elucidated the principles to be applied in determining whether a statute is retrospective or not, in the following words:

"(ii) Statutes dealing with substantive rights.- It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is "deemed to be prospective only nova constitutio futuris formam imponere debet non praeteritis [2 c. Int. 392]". In the words of LORD BLANESBURG, "provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment." "Every statute, it has been said", observed LOPES, L.J., "which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect". As a logical corollary of the general rule, that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, there is a subordinate rule to the effect that a statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary. In other words close attention must be paid to the language of the statutory provision for determining the scope of the retrospectivity intended by Parliament."

(emphasis supplied)

19. Parliament while substituting the provisions of Section 35F of the Central Excise Act, 1944 by Finance Act (No. 2) of 2014, has laid down that the Tribunal or the Commissioner (Appeals) "shall not entertain any appeal" unless the appellant has deposited the duty or, as the case may be, a penalty to the stipulated extent. These words in Section 35F of the Act would indicate that on and after the enforcement of the provision of Section 35F of the Act, as amended, an appellant has to deposit the duty and penalty as stipulated and unless the appellant were to do so, the Tribunal shall not entertain any appeal. This provision would, therefore, indicate that it would apply to all appeals which would be filed on and from the date of the enforcement of Section 35F of the Act.

20. The intendment of Section 35F of the Act is further clarified by the second proviso which stipulates that the provisions of the section shall not apply to stay applications and appeals which were pending before any appellate authority prior to the commencement of Finance (No. 2) Act 2014. The second proviso is a clear indicator that Parliament has exempted the requirement of complying with the pre-deposit as mandated by Section 35F(1) of the Act as amended only in the case of those stay applications and appeals which were pending before any appellate authority prior to the commencement of Finance (No. 2) Act 2014. Consequently, both by virtue of the opening words of Section 35F(1) of the Act as well as by the second proviso to the provision, it is clear that appeals which are filed on and after the enforcement of the amended provision on 6 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.

21. Our attention has been drawn to a judgment of the learned Single Judge of the Kerala High Court in Muthoot Finance Ltd. v. Union of India 2015-TIOL-632-HC-KERALA-ST . The Kerala High Court has referred to an interim order passed by the Andhra Pradesh High Court in K. Rama Mohanarao and Co. Vs. Union of India(2015) 321 ELT 195 [LQ/APHC/2015/10] : (2015) 50 GST 575 . The Kerala High Court while adverting to the interim order referred to the settled law that the institution of a suit carries with it an implication that all rights of appeal then in force are preserved to the parties. With great respect, the judgment of the learned Single Judge of the Kerala High Court has not considered the express language which has been used in the amended provisions of Section 35F(1) of the Act. The order of the Andhra Pradesh High Court which was relied upon in the judgment of the Kerala High Court is only an interim order.

22. For these reasons, we hold that the petitioner would not be justified in urging that the amended provisions of Section 35F(1) of the Act would not apply merely on the ground that the notice to show cause was issued prior to the enforcement of Finance (No. 2) Act, 2014. We find no merit in the constitutional challenge. The petition shall accordingly stand dismissed for the aforesaid reasons.