TMI Blog1996 (9) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... in India and the same are imported by the Tyre manufacturers. Since the tyre manufacturers do not have the infrastructure to convert the imported High Tenacity Yarns into Tyre Cord Fabrics, the petitioners company on job work basis converts the imported High Tenacity Yarns into Tyre Cord Fabrics. The converted Grey Tyre Cord Fabrics are cleared following the due excise procedure and despatched to the concerned tyre manufacturers. The grey tyre cord fabrics of high tenacity yarns cannot be used as such. The grey tyre cord fabrics have to be dipped in Dip solution made of resorcinal, Formaldehyde and later to impart adhesiveness to the Tyre Cord Fabrics of the High Tenacity Yarns. Only then, during the process of vulcanising the rubber compound will be finally embedded on the Tyre cord fabrics. The dipping is thus an integral process in the manufacture of tyres. The petitioner company has installed a modern dipping plant at their Madurai Unit. Most of the tyre manufacturers get the dipping of their tyre cord fabric done at the Dipping plant of the petitioner company to save the time at their end. The only cleared grey Tyre cord fabrics are dipped on job work basis and despatched agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court in W.P. No. 7793 of 1992 which was ultimately dismissed and against that W.A. No. 1101 of 1995 was filed. However, the Division Bench of this Court while setting aside the order in the writ petition, directed the petitioner company to file statutory appeal as provided under Section 35 of the Act. The Supreme Court also upheld the above directions of the Division Bench. As per the directions of the Supreme Court, the petitioner preferred an appeal to CEGAT under Section 35B of the Act. The petitioner company also made an application to dispense with the deposit of the excise duty and penalty. By order dated 24-6-1996, the CEGAT the 2nd respondent herein allowed the application with the direction that the petitioner shall make a pre-deposit of a sum of Rs. 17,00,000/- towards duty on or before 29-8-1996. Aggrieved by the same, the petitioner has approached this Court for the reliefs as prayed for. 3.Mr. S. Govindswaminathan, learned Senior Counsel appearing for the petitions company contended that the 2nd respondent CEGAT has not exercised its discretion, in accordance with law, viz., in accordance with the proviso to Section 35F of the Act. He further contended that by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58 (Madras) Aurelec Trust v. Superintendent of Central Excise - 1993(3) (63) E.L.T. 57 (Madras). In Vijaya Prakash and Jawahar v. Collector of Customs (Preventive) Bombay - 1989 (39) E.L.T. 178 (SC) = AIR 1988 S.C. 2010, the Supreme Court observed as follows :- "Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. ***** It is not the law that adjudication by itself following the rules of natural justice would be violative 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 these conditions that the right becomes vested and exercisable to the appellant." In V.C. Sundarrajan v. Collector of Customs - 1993 (65) E.L.T. 358 (Madras) K.S. Bakthavatsalam, J., followed the ruling the Supreme Court in Vijaya Prakash and Jawahar v. Collector of Customs (Preventive), Bombay - 1989 (39) E.L.T. 178 (S.C.) = (A.I.R. 1988 S.C. 2010). In Aurelec Trust v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Jayachandran, learned Additional Central Government Standing Counsel on behalf of the respondents. 6.The point for consideration in this writ petition is whether the insertion of Section 11AA to the Central Excises and Salt Act, 1944 with effect from 25-8-1995 by Finance Act, 1995 affects the exercise of discretion under proviso to Section 35F of the said Act? 7.According to the contention of the learned Senior Counsel appearing for the petitioner company, once Section 11AA is inserted and came into force, the appellate authority has no discretion to insist upon the deposit of duty demanded or the penalty levied and ought to exercise its discretion by not insisting on pre-deposit of duty as the interest of Revenue has been adequately safeguarded by provision of interest under Section 11AA of the Act. The submission of the learned Senior Counsel is that once Section 11AA has been inserted and came into force, the discretion given under provision to Section 35F is to be exercised without insisting on any pre-deposit of amount for the duty demanded and the penalty levied thereon and both the Sections 11AA and 35F have to be construed harmoniously to that effect. On the other h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... makes it clear that the said section deals at the stage of assessment proceedings after the duty has been assessed or the penalty has been levied and in order to safeguard the interest of the Revenue an obligation is cast to pay the amount assessed or the penalty levied, within certain period and if they are not paid within three months, an interest at the rate not below 10% and not exceeding 30% is payable. Whereas Section 35B confers a statutory right of appeal to the aggrieved party. The procedure to entertain the appeal is given under Section 35F. It is clear that the right of appeal conferred by Section 35B is subject to the procedures given under Section 35F. As observed by the Supreme Court in Vijaya Prakash and Jawahar v. Collector of Customs (Preventive), Bombay - 1989 (39) E.L.T. 178 (S.C.) = A.I.R. 1988 S.C. 2010, the right of appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. It is not the law that adjudication by itself following the rules of natural justice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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