TMI Blog2007 (9) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Civil Application No. 9569 of 2004. 3. An adjudication proceeding was initiated against the appellant. Assessment of Custom Duty was made. An appeal was preferred thereagainst. The said appeal was dismissed for failure to pre-deposit a sum of Rs. 3,30,00000/- as directed by the Court of Appeal. 4. We may notice that in the earlier round of litigation when a statement was made before the High Court that the Tribunal may hear the appeal on merit without asking the appellant to make any pre-deposit, it was asked to make that prayer before the Tribunal. Pursuant thereto an application was filed. The Tribunal in terms of its order dated 14-1-2004 opined : "We accordingly order that the appellant company deposit Rs. 3 crores out of the total duty demand upon such deposit further deposit of duty and penalty imposed on the company is waived and recovery thereof stayed. We further order that the director of the company Shri R.C. Agarwal deposit Rs. 20 lakhs and the power of attorney holder of the Company Shri H.R. Agarwal deposit Rs. 10 lakhs within 12 weeks of the date of the order. Compliance on 26-4-2004. Appeal is liable to be rejected for non-compliance without further notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest in appeal which is preferred in respect of the goods which are not under the control of the custom authorities or any penalty levied under the Act. Proviso appended thereto, however, empowers the Commissioner of Appeal or the Appellate Tribunal to dispense with such deposit if it comes to the conclusion that the deposit of duty and interest would cause undue hardship to the appellant. 9. A right of appeal is not a fundamental right. It is a statutory right. As a right of appeal is a statutory right, it may also be hedged by conditions. It is, however, trite that conditions imposed may not be such which may for all intent and purport take away a vested right of appeal. [See Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. Anr., 2007 (5) SCALE 452] 10. We, however, having regard to the facts and circumstances of this case are of the opinion that the larger question, viz., interpretation of Section 129E of the Act need not be gone into. Section 129E of the Act would be attracted where the goods in question are not in the custody of the Revenue. The said provision, therefore, would be attracted only when the ingredients thereof exist. The learned Additional Solicitor Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve of any right-constitutional or statutory, without any right of appeal, as such, if the statute gives a right to appeal upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested and exercisable to the appellant. The proviso to Section 129E of the Act gives a discretion to the Tribunal in cases of undue hardships to condone the obligation to deposit or to reduce. It is a discretion vested in an obligation to act judicially and properly." 13. Mr. Sree Kumar, however, submits that inter alia having regard to the decision of the Madhya Pradesh High Court in Kishori Pujari Granite Pvt. Ltd. v. Union of India [2005 (184) E.L.T. 225] and the decision of the Kerala High Court in Ashoka Rubber Products v. Collector of C. Ex. [1989 (43) E.L.T. 605], the matter requires reconsideration. As at present advised, we are not inclined to do so. 14. We are satisfied that in a case of this nature, where a part of the goods which is the subject matter of the proceedings under the Act is in possession of the Revenue, proviso appended to Section 129E of the Act should have been invoked. 15. Justification for enacting such a provision has been considered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecured creditor (iv) no special reason for double security in respect of an amount yet to be determined and settled (v) 75% of the amount claimed by no means would be a meager amount (vi) it will leave the borrower in a position where it would not be possible for him to raise any funds to make deposit of 75% of the undetermined demand. Such conditions are not alone onerous and oppressive but also unreasonable and arbitrary. Therefore, in our view, sub-section (2) of Section 17 of the Act is unreasonable, arbitrary and violative of Article 14 of the Constitution." 16. The Constitution Bench, therefore, was of the opinion that such a condition would be onerous and, thus, arbitrary if a suitor is required to deposit such an amount at the initial stage and not at the appellate stage. 17. We are not oblivious that the taxing statute must be strictly construed. [See Manish Maheshwari v. Asstt. Commissioner of Income Tax and Anr., 2007 (3) SCALE 627 and Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector and E.T.I.O. and Ors., 2007 (7) SCALE 392] We are also not oblivious of the fact that only because the word "shall" is used, the same may not be construed to be impe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
