TMI Blog2009 (3) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the order passed by the DCST under annexure 3 is hereby quashed. The DCST is directed to recompute 20 per cent of the tax and interest levied by the assessing officer for the period from July 6, 2006 to July 31, 2007 and intimate the same to the petitioner within a period of four weeks from today. If the petitioner pays the said amount within two weeks thereafter, the DCST is directed to entertain the appeal filed against the assessment order passed for the period from April 1, 2005 to March 31, 2007, if the appeal is otherwise maintainable. Writ petition allowed. - W.P. (C) No. 3089 of 2009 - - - Dated:- 23-3-2009 - CHAUHAN B.S. DR. C.J. AND MAHAPATRA B.N. , JJ. B.N. MAHAPATRA J. This writ petition has been filed seeking a larg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jected summarily. In response to the said notice, the petitioner appeared before the DCST and submitted that the appeal being filed against the assessment made under the CST Act the requirement of deposit of 20 per cent of tax and interest in dispute as provided in sub-section (4) of section 77 of the OVAT Act is not applicable. Since the petitioner did not pay 20 per cent tax and interest in dispute, the DCST rejected the stay petition as well as appeal petition summarily under section 77(4) of the OVAT Act. Hence, the petition. Mr. B. Panda, learned counsel appearing for the petitioner submits that sub-section (4) of section 77 of the OVAT Act speaks that no appeal against any order shall be entertained by the appellate authority unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear provision of rule 22 of the CST (O) Rules. Therefore, the present petition is liable to be dismissed. At this juncture, it is necessary to know what is contemplated under section 77 of the OVAT Act, which deals with appeal and rule 22 of the CST (O) Rules. The relevant portions of section 77 and rule 22 are quoted below: Section 77 of the OVAT Act: 77. Appeals. (1) Any dealer aggrieved by an order passed under section 34, 40, 42, 43, 44, 45, 49 or 52 may prefer an appeal to such authority as may be prescribed. . . . (4) No appeal against any order shall be entertained by the appellate authority, unless it is accompanied by satisfactory proof of payment of admitted tax in full and twenty percentum of the tax or interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (OGE No. 962), dated July 6, 2006. Thus, no appeal against assessment order passed under the CST (O) Rules shall be entertained on and after July 6, 2006 unless the appeal is accompanied by satisfactory proof of payment of admitted tax in full and 20 percentum of the tax and interest or both in dispute. The said notification dated July 6, 2006 has no retrospective applicability. The honourable Supreme Court in State of Bombay v. Supreme General Films Exchange Ltd. AIR 1960 SC 980, held that an impairment of the right of appeal, by putting a new restriction thereon or imposing a more onerous condition, is not a matter of procedure only; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless ..... X X X X Extracts X X X X X X X X Extracts X X X X
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