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2019 (5) TMI 443 - HC - VAT and Sales TaxMaintainability of appeal - petitioner’s grievance is that the long pendency of the application seeking waiver, was contrary to Section 74(3) - HELD THAT:- It is evident on a plain reading of the two provisions that right to appeal is conferred upon the aggrieved party under Section 72. The appeal has to be preferred to the Deputy Commissioner or the Excise Commissioner [or in the case of the primary order being made by the Excise Commissioner to the Financial Commissioner under Section 72(3)]. The limitation for such an appeal is within 30 days from the date of the communication of the impugned order - A joint reading of the relevant parts of Section 72 and Section 74, clarifies that if the appeal is properly filed, in the sense that it is accompanied by the amount in dispute, determined by the primary assessing authority as a demand, the requirements of Section 72(7) would apply. On the other hand, if there is no compliance with Section 74(1) and the aggrieved party seeks relief by way of waiver of pre-deposit under Section 74(2), the application has to be made for that purpose setting out the grounds. This Court is of the opinion that there is no consequence of the kind that is sought to be urged with regard to Section 74(3). One of the indications of a statute being mandatory is that it is cast in imperative terms and the consequence of the failure to comply with such mandate is provided. Not only is Section 74(3) silent as to the consequence of non-compliance, the use of the words “where it is possible to do so” expressly indicates its directory (and not mandatory) nature. This is in contrast to Section 72(7), where the proviso provides the consequence for non-compliance. Petition allowed.
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