TaxTMI 
TaxTMI 
2010 (10) TMI 750
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....tral Excise Act, 1944 (hereinafter referred to as the Act of 1944) and under Section 129E of the Customs Act, 1962 (hereinafter referred to as the 1962 Act). 2. The Writ Petition No. 261 of 2008 (M/s. Premising Exports Limited & Anr. v. Union of India & Ors.), Writ Petition No. 2428 of 2008 (M/s. Shree Krishna Limited & Anr. v. Union of India & Ors.) and Writ Petition No. 4006 of 2008 (Suresh Goyal & Sons v. Union of India & Ors.) [2009 (243) E.L.T. 3 (Cal.)] were filed to challenge the orders passed in appeals by the Appellate Tribunal directing pre-deposit under Section 35 of the 1944 Act or under Section 129(e) of the 1962 Act. All the said writ petitions were kept pending for hearing and during pendency of all these writ petitions, appeals were dismissed by the Appellate Tribunal for non-compliance of the orders directing pre-deposit. The Writ Petition No. 220 of 2008 M/s. Shaman Ispat Limited & Anr. v. Union of India & Ors) and Writ Petition No. 1016 (M/s. Shree Gobinddeo Glass Works Ltd. & Anr. v. Union of India & Ors.) were moved and further orders were passed by the Appellate Tribunal disposing the appeals for non-compliance of the orders directing pre-deposit. 3.&em....
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.... of existing laws pertaining to the same set and the failure to add a repealing clause indicate that intention was to repeal the existing legislation. Of course this assumption will be repeated if the provision of new Act is so inconsistent with the old Act that two cannot stand together. Hence the law declared in the above two decisions by the Supreme Court is binding upon all the Courts. 8. He further contends while drawing support of the Supreme Court decisions that in the matter of Ramesh Kumar v. Union of India & Ors reported in (1990) 4 SCC 207, it is the duty of the Court to adhere to precedent and not to unsettle things which are settled by the Apex Court and to apply all future cases wherein facts are substantially same. 9. His next contention is that the right of statutory appeal is subject to condition which Parliament can impose and unless this condition is fulfilled the appeal cannot be maintained. In support of this contention he has drawn our attention to a Supreme Court decision in the case reported in (1995) 2 SCC 175. 10. He further submits that Section 35C(2A) came to be examined and incorporated by the Larger Bench of the Tribunal in case of IP....
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.... 28A, 18, 19, 20, 28C and 41 of the said Rules 1982 along with public notice No. 7 of 1999 dated 2nd July 1999 the procedure of hearing of the appeal has been provided and if those provisions are read conjointly with Section 35B, 35E, 35F then there is no scope to hold that Tribunal has any jurisdiction to dismiss the appeal on the ground of non-deposit and/or failure to deposit in terms of Section 35F. 13. He further submits that wherever two interpretation are possible one which prevail before insertion of Section 35C(2A) and another after 11th May 2002 the principle of strict interpretation should be applied though, yet the court could not interpret the same in such a manner which could create additional and fiscal burden on a person. In support of his submission he has relied on decisions of the Supreme Court reported in (2006) 7 SCC 714 = 2006 (202) E.L.T. 7 (S.C.) (Sneh Enterprises v. Commissioner of Customs). The above principle has been approved by the Supreme Court in the subsequent decision in the case of Ispat Industries Limited v. Commissioner of Customs reported in (2006) 12 SCC 583 = 2006 (202) E.L.T. 561 (S.C.). 14. He further submits that the Gujar....
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....buttress our conclusion we need to examine the provision of Section 35C with provision of insertion of new sub-section. On careful reading of sub-section (2A) of Section 35C it appears to us that Legislature keeping in view the necessity of speedy disposal of the revenue matter has fixed a time-limit, which was not provided earlier specifically. The time-limit as far as possible was fixed for three years from the date on which such appeal is filed. We think that the aforesaid three years period is substituted with 180 days where any interim order of stay has been granted in an appeal. It has been further provided which could be understood on reading the second proviso of the said sub-section that if for any reason the appeal is not disposed of where interim order of stay is granted then stay order shall on the expiry of that period will stand vacated. 19. Thus it is clear that the aforesaid provision is nothing to do with the provision for pre-deposit pending hearing of the appeal. We are of the view that the provision for pre-deposit is an independent provision and it is required in selective cases and situations and not in all appeals which required to be filed under the pr....
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.... Central Excise authority or penalty levied in order to secure the revenue the provision for pre-deposit has been made it mandatory, selectively a number of appeals contemplated in Section 35F of the said Act. In the sequel where pre-deposit is not required at all, for example if any duty is levied in relation to any goods and it transpired later on levy of such duty and realization thereof is not warranted under the law then appeal could be preferred and in that case no pre-deposit is required. Another example in case where goods in question on which the duty is levied is in custody and control of the Central Excise authority then in such a situation no pre-deposit is required. 21. If we accept the logic of the learned Trial Judge that sub-section (2A) of Section 35C has really diluted the provision of pre-deposit then we are to hold that sub-section 2A is applicable in cases of the appeals where pre-deposit is required. The legislature never thinks to make any provision of the law applicable in a truncated manner unless of course it is specifically provided. We think while accepting the argument of Mr. Roychowdhury, that there is no legal change at all, of the situation sub....
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.... has to be made in every appeal. In the case of the pre-deposit under the provision of Section 35F is not an absolute and rigid provision which could be dispensed with in appropriate cases unlike provision of Section 189(3) of the KMC Act. When Supreme Court has laid down the law notwithstanding in absence of expressed power of dismissal of appeal in the Act that Tribunal is competent to dismiss the appeal in case of failure of deposit in spite of chances being given, no other contrary argument is tenable. 25. In our view the effect of insertion of sub-section (2A) in Section 35C with the proviso thereunder is no more than fixation of time-limit within which appeal has to be disposed of, and if not possible then in case where stay order is subsisting in appeal the same would stand vacated. Consequence of vacating order of stay is that pre-deposit made earlier could effectively be appropriated by the department without any fetter whatsoever. 26. The learned Judge has held that the appeal has to be on merit heard even if no deposit is made in terms of order of Tribunal and the same cannot be dismissed even though interim order stands vacated, in a situation like this Reve....