PIYA PHARMACEUTICAL WORKS Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) THE appellants have filed an appeal No. 67/83 to the Tribunal against order dated 6 -10 -1982 passed by the Collector of Central Excise, Meerut. The said order calls upon the appellants to pay Rs. 1,12,188.27 as duty of Excise and Rs. 25,000 as penalty.

(2.) THE appellants filed Stay application in the appeal. Shri K. Narasimhan, Advocate for the appellants at the hearing of the Stay application contended that right of appeal is a matter of substantive right and not merely a matter of procedure and thus right become vested in the appellants when the proceedings were first initiated against them, by issue of show cause notice dated 8 -5 -1981 and order passed by the Collector on 6 -10 -1982. This right could not be taken away by subsequent legislation except by express enactment or necessary intendment. Shri Narasimhan submitted that Section 35F of the Central Excises and Salt Act, 1944 (hereinafter called the Act) requiring an appellant to make deposit of duty and penalty as pre -condition for an appeal was not applicable in the appellants' case. He reiterated that even before the amendment in Section 35 of the Act by the Finance Act, 1980, under Section 35 of the Act as it then existed the appellants had a right of appeal against the order in question to the Central Board of Excise and Customs. The proceedings against the appellants leading to the demand and the order under appeal commenced before 11 -10 -1982 and the amended provisions of Section 35 of the Act including Section 35F came into force on 11 -10 -82. By this newly added provision, right of appeal which was available to the appellants under Section 35 of the Act was being curtailed or whittled down. The appellants' right of appeal would be governed in the absence of express enactment or necessary intendment in subsequent legistation by the law which was in force when the proceedings commenced against the appellants. In support of his arguments, Shri Narasimhan relied on " Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh & Ors - (1953) SCR 987=1983 ELT 1277.

(3.) ON behalf of the respondent, Smt. Vijay Zutshi, SDR submitted that Section 35F of the Act unmistakably showed that it was necessary for a person desirous of appealing against an order to deposit with the adjudicating authority the duty demanded or the penalty levied. Failure to do so, unless the Tribunal acting under the proviso dispensed with such deposit, would lead to rejection of the appeal. The provision clearly showed that it was applicable even if proceedings leading to demand commenced before the provision came into force. Smt. Vijay Zutshi on this argument tried to distinguish the ruling cited by Shri Narasimhan and submitted that in the light of her arguments ruling was not applicable to the case.