1983 (8) TMI 254 - AT - Central Excise

Summary

Issues:
Appeal against order for payment of excise duty and penalty; Applicability of Section 35F of the Central Excises & Salt Act, 1944; Right of appeal as a substantive right; Interpretation of Section 35F in cases where proceedings commenced before its enactment.

Analysis:
The appellants filed an appeal against an order demanding excise duty and penalty. The key contention was the applicability of Section 35F of the Act, which requires a deposit for appeal. The appellant argued that the right of appeal is a substantive right vested at the initiation of proceedings and cannot be curtailed by subsequent legislation unless expressly stated. They relied on the case of Hoosein Kasam Dada (India) Ltd. v. The State of Madhya Pradesh to support their position.

The respondent contended that Section 35F mandates a deposit for appeals, even if proceedings began before its enactment. The parties agreed that the appellants previously had a right of appeal without such conditions. The central issue was whether Section 35F applies retroactively to cases where proceedings began before its enactment.

Referring to the case of Hoosein Kasam Dada (India) Ltd., the Tribunal highlighted the principle that the right of appeal is substantive and cannot be taken away without express enactment. The Tribunal emphasized that since the show cause notice was served before Section 35F came into force, the provision would not apply to the appellants' case.

The Tribunal accepted the appellants' argument that Section 35F, requiring a pre-deposit, is not applicable in their case. Consequently, the appeal would proceed without the need for such a deposit. The Tribunal clarified that the incidental powers of granting stays, independent of Section 35F, were not under consideration in this case.

In conclusion, the Tribunal ruled in favor of the appellants, holding that Section 35F does not apply to their appeal due to the timing of the proceedings initiation. The judgment reaffirmed the principle that the right of appeal is a substantive right and cannot be restricted without explicit legal provisions.