TMI Blog2010 (10) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... i Pranab Kumar Datta, Counsel, for the Respondent. [Order per : Kalyan Jyoti Sengupta, J.]. The Court : The above appeal has assailed the judgment and order of the learned Trial Judge dated 23rd June, 2009 [2009 (243) E.L.T. 3 (Cal.)] whereby and whereunder His Lordship disposed of a number of writ petitions as the core issue involved in all these writ petitions are identical and common, however, the problem were different. Naturally the reliefs in the writ petition were granted in different manner. The core issue involved in the matter is whether the learned Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as the Tribunal) is justified in dismissing the appeal preferred before it for non-compliance of orders passed by it, directing pre-deposit under Section 35F of the Central 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. 400 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction merely provides for a time frame for disposal of appeal preferred under Section 35C and it makes it clear if the appeal is not disposed of within six months order of stay if passed would stand vacated. It is thus clear the said provision of sub-section (2A) cannot be said to have diluted the law laid down by the Hon ble Supreme Court in the aforesaid two cases. 7. He submits that implied overruling of any decision cannot be inferred and furthermore the Supreme Court in the case reported in AIR 1963 SC 1561 has held that it is undoubtedly true that the Legislature can exercise the power of repeal by implication, but it is equally well settled principle of law that there is presumption against implied repeal in the premise that the Legislature enacts law with a complete knowledge 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 fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal is admitted with interim order and it is not disposed of within the period of 180 days from the date of such order then interim order will stand vacated. Thus on conjoint reading of the said two amended provisions it is clear that the ratio decided in the aforesaid two Supreme Court judgments is diluted and there cannot be any other interpretation except that appeal has to be heard ultimately without any interim order or for that matter without any deposit being made. According to him that the provision of sub-section 35F cannot be read independently and divorced from the provisions of Section 35C(2A), 35B(1), 35D(1) of 1944 Act. The Rule has been framed under Section 38 of the Act; namely Customs Excise Services Tax Appellate Tribunal Rules, 1982. By the Rules 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal should not be dismissed on the ground of failure to make pre-deposit. 17. The reasons for conclusion of the learned Trial Judge appears to be that the language mentioned in Section 35C(2A) fixing time limit for disposal of the appeal and having regard to various provisions of the Rules framed under the said Act now the Tribunal has no option but to take up the matter of appeal for hearing on merit. 18. We are unable to accept the reasoning and conclusion arrived at by the learned Trial Judge that the ratio decided by the Supreme Court in those two Cases have no binding force or for that matter with insertion of the said Section 35C(2A) the provision of pre-deposit pending hearing of the appeal has been rendered infractuous. To 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vat Credit Rules, 2002 or Cenvat Credit Rules 2004. (v) Interest payable under the provisions of this Act or the rules made there under.) (emphasis supplied) 20. It is obvious from the said proviso pre deposit in pending hearing appeal is required where appeal is filed against any order in connection of which any duty is demanded in respect of the goods which are not under the control of Central Excise authorities or any penalty levied under this Act. It therefore follows that where duty is demanded in respect of the goods which are not under control of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atio decided earlier by the Supreme Court. The analogy of Section 189 sub-section (3) of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as the KMC Act) cannot be brought into operation in this case. In case of appeal filed under Section 189 sub-section (3) of the KMC Act the provision of deposit of property tax is so rigorous that if the same is not done by the appellant then the appeal automatically abates and there is no need to pass any further order of dismissal. The pre-deposit in cases under Section 189 sub-section (3) of the KMC Act 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one and in the event the learned Tribunal without any stay order being produced before it, sits tight over the matter the Revenue will remain in uncertainty. Therefore, we do not think that the learned Tribunal under the law has taken step de hors any provision of the law. The reliance of the learned Trial Judge of the Supreme Court decision in this regard in our view is wholly inappropriate as in that case the disciplinary authority practically threatened by their act and action the employee concerned against his moving higher forum. In view of factual background the Supreme Court has decided that it amounts to interference with the administration of justice when a litigant is scared illegitimately, if not unconstitutionally for access to Court of law is part of fundamental right as being right to fair trial (see Police Commissioner, Delhi v. Registrar, Delhi High Court, AIR 1997 SC 95). 29. In view of the aforesaid discussion as stated above we think that the proper course and procedure of the Tribunal would be wherever pre-deposit is required either the same should be dispensed with fully or partially on application being made. If such dispensation is not allowed then the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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