TMI Blog1984 (7) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... rates. The concessional rate of duty can be availed of subject to two conditions, viz, (1) that the yarn is purchased by a registered handloom co-operative Society and (2) that the payment for such yarn is made by cheque drawn by such Co-operative society on its own Banker. In the instant case, it was found that the second condition was not satisfied. After issuing a show cause notice, the Central Excise authorities called upon the petitioner to pay differential duty on 75548 kg. of yarn which worked out to Rs. 36,774/- under Section 11A of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act). The petitioner preferred an appeal to the second respondent and prayed for stay of payment of Excise Duty. The second respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollector and procedure in appeal. He also referred to analogous provisions relating to appeals, in the Tamil Nadu General Sales-Tax Act and the Income-Tax Act, and argued that the right of appeal provided under the Act cannot be deprived solely on the ground of non-payment of the disputed tax amount. In support of his argument, he referred to the decision in United Tobacco Co. v. Collector, Central Excise [A.I.R. 1968 A.P. 282 (F.B.)] which related to a case under the Sea Customs Act. 4.The first contention of the petitioner's counsel is clearly unsustainable. No doubt, Section 35 of the Act confers a right on an aggrieved person to prefer an appeal to the Collector. Likewise, Section 35A prescribes the procedure to be followed in the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal. However, the Legislature, coming to realise that an inflexible application of Section 35F would cause undue hardship in the case of certain persons, has added a proviso to Section 35F. Under the proviso, the Collector or the Appellate Tribunal has been granted the discretion to dispense with the deposit of the duty demanded or the penalty levied either unconditionally or subject to the imposition of reasonable conditions for safeguarding the interests of the Revenue. Such being the position, it is futile on the part of the petitioner to read Section 35 and Section 35F in severance and contend that non-compliance with the mandatory requirement of Section 35F cannot have any impact on an affected party's right to prefer an appeal under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in conflict with the stand taken by the petitioner before the first respondent. In the impugned order, the Tribunal has observed as follows : `Shri V. Narayana Moorthy, Advocate for the appellant, requested that further time be given to enable the appellant to deposit the amounts of Central Excise duty and the Collector of Central Excise (Appeals) be directed to hear the appeal on merits'. Having thus pleaded before the Tribunal that the petitioner appellant only wanted further time to pay the disputed excise duty, there is neither grace nor justice in the petitioner now contending that the first respondent was only called upon to pass orders in the stay petition, but the first respondent went beyond the scope of the matter and has p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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