TMI Blog1989 (7) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for stay of recovery of the disputed duty and penalty. The appellate tribunal passed Ext. P5 order on the said application dispensing with the requirements of pre-deposit on condition that the petitioner shall deposit a sum of Rs. 75,000/- on or before 30.6.1987. It is not disputed that the petitioner has deposited the said amount within time. But the petitioner's grievance is that the Customs Officials are now trying to recover the balance amount covered by the order appealed against Ext. P9 notice was issued by the Assistant Collector of Central Excise intimating the petitioner that proceedings under Rule 230 of the Central Excise Rules have already been initiated against the petitioners for recovery of balance amount. Hence the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudicating or decision, as the case may be, after taking additional evidence, if necessary." The succeeding provisions relate to the procedure to be followed by the Appellate Tribunal, revisional powers etc. The requirement of pre-deposit of the disputed duty is evisaged in Section 35F. It reads thus : "Where in any appeal under this Chapter, the decision or order appealed against relates to any duty dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Assistant Commissioner from certain orders of the Income-tax Officer. The first proviso to the said Section says that "no appeal shall lie against an order …... unless the tax has been paid". The expression "no appeal shall lie" in the first proviso was considered by the Supreme Court in Commissioner of Income-tax v. Filmistan Ltd. (1961 I.L.R. Vol. 42 -163). The rigidity of the prohibition was slightly relaxed by the Supreme Court holding that "all that the proviso means is that the appeal will not be held to be properly filed until the tax has been paid". Another instance is the provision contained in Section 14(1) of the General Sales Tax Act which enables the filing of an appeal to the Appellate Assistant Commissioner. The relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt decision reported in Commissioner of Income-tax v. Chenniappa Mudaliar (1969 I.T.R. Vol. 74 - 41). The background of the case is that the Madras High Court struck down Rule 24 of the Income-tax Appellate Tribunal Rules which gave power to the Income-tax Appellate Tribunal to dismiss the appeal for default, being repugnant to Section 33(4) of the Income-tax Act. As per the said section, the Income-tax Appellate Tribunal is obliged to decide the appeal after giving an opportunity to the parties to put forward their case. The decision of the Madras High Court has upheld by the Supreme Court in Chenniappa Mudaliar's case (cited supra). Even when power was conferred through delegated legislative process to dismiss appeal for default the pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er passed on the application is meant to operate as a stay. Of course, the stay envisaged therein applies to the requirement of making the pre-deposit. But the effect of the order must have some advantage to the appellant who makes the application. The only advantage which can be conceived of is that the appellant will be relieved of the burden to pay the amount or balance amount, as the case may be, during the operation of the stay order. No other usefulness can be thought of with such an order so far as the appellant is concerned. Hence, I take the view that the order dispensing with the requirement of predeposit will operate as a stay order against recovery of the amount, or balance amount till the disposal of appeal. I, therefore, dir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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