2002 (3) TMI 62 - HC - Central Excise

Division Bench Grants Relief in Writ Petition against Duty Levy & Penalty

The Division Bench allowed the writ petition challenging the order refusing stay of duty levy and penalty under Section 35F of the Central Excise and Salt ... Appeal Issues:Challenge to order refusing stay of implementation of duty levy and penalty under Section 35F of Central Excise and Salt Act, 1944. Question of law relating to jurisdiction: Whether appeal can be rejected for non-payment of taxes due to an amendment in law post initiation of proceedings.Analysis:1. The petitioners challenged an order refusing stay of duty levy and penalty under Section 35F of the Central Excise and Salt Act, 1944. The court noted a crucial question of law regarding jurisdiction. The issue revolved around the applicability of the amendment requiring pre-deposit of duty and penalty during the appeal process. The court highlighted the conflict between the law as it existed during the initiation of proceedings and the subsequent legal amendments affecting the right to appeal.2. The Division Bench referred to a significant case, M/s. Chloride India Ltd. v. Union of India, where the Apex Court's decision in Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh was cited. The Apex Court ruled that the right to appeal is a substantive right vested in a party at the initiation of proceedings. The court emphasized that this right cannot be arbitrarily taken away except through express enactment or necessary intendment. The case illustrated how an amendment altering the appeal process cannot infringe upon the vested right to appeal under the original law.3. In light of the precedent set by the Apex Court, the Division Bench allowed the writ petition. The appellate authority was directed to proceed with the appeal without imposing the condition of pre-deposit of duty and penalty. This decision reaffirmed the principle that the right to appeal is a substantive right protected from retrospective amendments that seek to undermine the appeal process.This judgment clarifies the fundamental principle that the right to appeal is a substantive right vested at the initiation of proceedings, safeguarded against subsequent procedural amendments. It underscores the importance of upholding procedural fairness and protecting litigants' rights in the face of legal modifications post-commencement of proceedings.