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TMI Blog1986 (4) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... nts, and the remaining item, namely, stand stud , under T.I.52, as contended by the Department. However, he held the demand for duty in respect even of this item to be time-barred. He also absolved the applicants of the allegations levelled against them in the show-cause notice. 3. The Collector of Central Excise, Patna, thereafter passed an order dated 30.3.85 in exercise of his powers under Section 35E(2), Central Excises and Salt Act. By this order, he directed the Deputy Collector to file an appeal (sic) under Section 35E(4), Central Excises and Salt Act, before the Collector of Central Excise (Appeals), Calcutta, against the Deputy Collector s order-in-original dated 31.3.84, seeking a decision whether it was legal and justified to classify the four items of nuts and bolts under T.I.68, and to modify the Deputy Collector s order so as to hold these four items to be classifiable under T.I. 52. 4. The Collector (Appeals), by his order-in-appeal dated 11.7.85 held that the other four items were classifiable under T.I. 52. He accordingly set aside the order of the Deputy Collector in respect of those four items and allowed the appeal (sic). 5. Thereafter, the present appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such circumstances. In support of this proposition he advanced four arguments :- (i) The provisions relating to the right of appeal should be liberally construed (vide judgment of the Allahabad High Court in the case of Mohan Lal Khemka v. C.I.T., reported in Vol. 81 ITR 89 at page 93); (ii) The machinery provisions in laws should be construed in such a manner as to make the machinery work and not make it ineffective (vide judgment of the Hon ble Supreme Court in the case of India United Mills v. Commissioner of Export Profits Tax, reported in AIR 1955 SC 79); (iii) A legal fiction should be interpreted so that the full logical consequences thereof follow (vide judgment of the Hon ble Supreme Court in the case of Dargah Committee, Ajmer v. State of Rajasthan, reported in AIR 1962 SC 574 at page 577); and (iv) Any ambiguity in a machinery provision should be interpreted ^ in such a manner as to carry out the purposes of the Act. In this connection Shri Lakshmi Kumaran pointed out that the purpose of the amendments to the Central Excises and Salt Act bringing in the jurisdiction of this Tribunal was to provide a high level machinery for giving independent decisions in dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rast to the scheme of the provisions of Chapter VIA, as amended, which provides a chain of appeals going up to the Appellate Tribunal in all other cases; a further appeal to the Supreme Court in matters relating to valuation or rate of duty; and a reference application in other matters. This would also be in contrast to the position prior to amendment. Previously, an order-in-original could be revised suo motu by the Collector of Central Excise in terms of Section 35A(2). However, such a revisional order was not final but was subject to a further revision by the Central Government under Section 36(1) as it then stood. The effect of rejecting Shri Lakshmi Kumaran s contention would, therefore, be to take away a remedy which existed prior to the introduction of the provisions relating to the Appellate Tribunal; and also, as already stated to treat one classes of cases, where the order of the Collector (Appeals) becomes the final order under the Act, differently from all other classes of cases falling within Chapter VIA. It would certainly appear anomalous that, in the process of setting up a new appellate authority, which could visibly be seen to be separate from the executive author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. (v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise" (Emphasis added). This has been reaffirmed by the Hon ble Supreme Court in the case of Dayawati and Another v. Inderjit and Others, reported in AIR 1966 SC 1423, as seen from the following extract :- (11) Section 6 of the Relief of indebtedness Act is clearly retrospective. Indeed, the heading of the section clearly shows that it lays down the retrospective effect. This being so, the core of the problem really is whether the suit could be said to be pending on June 8, 1956 when only an appeal from the judgment in the suit was pending. This requires the consideration whether the word suit includes an appeal from the judgment in the suit. An appeal has been said to be the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below. (per Lord Westbury in Attorney-General v. Sillem, (1864) 11 ER 1200 at p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals against orders passed under the Produce Cess Act by the Appellate Collector or Collector (Appeals). 17. Thus, in the light of the various considerations we have set out above, we are of the view that the effect of Section 35E(4) is to make applicable to orders passed under that Section not only the provisions relating to disposal of appeals to the Collector (Appeals) but also the connected provisions relating to further appeals. In other words, an appeal would lie to the Appellate Tribunal under Section 35B against an order passed by the Collector (Appeals) under Section 35E(4). In this view the present appeal is maintainable and so is the stay application which is the subject of our consideration. 18. We now come to the merits of the stay application. Shri Lakshrai Kumaran argued that the applicants had a strong case on merits. He submitted that in regard to the one item where the Deputy Collector had held against the applicants, he had nevertheless held the demand to be totally time-barred. According to him, the other four items were on exactly the same footing and the demand in respect of those also was totally time-barred. 19. As regards the financial position of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Andhra Pradesh High Court allowed the appeal, reversed the order of the sub-court and decreed the suit. 24. The application for leave to appeal to the Supreme Court was dismissed on the ground that the value of the property was Rs. 11,400.00 less than Rs. 20,000.00. The petitioner contended that the judgment being one of the reversal and the value being above Rs. 10,000.00, he was entitled as a matter of right to come to the Supreme Court on appeal and that right had been denied to him by the High Court. 25. On the date of the institution of the suit in April 1949, an appeal was maintainable to the Federal Court on a valuation of above Rs. 10,000/-. However, when the appeal went before the High Court, the Federal Court had been abolished, while an appeal to the Supreme Court had a valuation of Rs. 20,000.00. The Supreme Court by a majority of 4 judges to 1, decided that the aggrieved party had a vested right of appeal to the Federal Court and that such vested right of appeal was a matter which did not fall within article 133 and jurisdiction and powers with respect to such right of appeal was exercisable by the Federal Court immediately before the commencement of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was no right of any person, affected by an order of the Appellate Collector under section 35E of the Central Excises and Salt Act, 1944, to appeal to the Tribunal. The right of appeal, observed the Supreme Court, was a substantive right and it was only a step in a series of proceedings all connected by intrinsic unity; but it also pronounced at paragraph 23(iii) : The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. It also observed in the next sub-para : The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the list commenced and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. There was no right, under the Central Excises and Salt Act, 1944, in December 1983, when the show cause notice was issued and the list commenced, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) under section 35E; but the fact remains that if the intention was to provide for an appeal, that intention must be written into the law and that till then, we cannot read the intention as a provision of the statute. It is when laws do not reflect the intention that they are amended and we have seen laws being amended every day. The right of appeal is too important a right to be conferred by intentions or by what one thinks the framers had in their minds. A right, to become substantive, must have the sanction of the law and until then, it lacks substance, and there is no way of improving it, even if one is certain about the intention. 31. The learned President has listed a number of anomalies that would result if there were no appeals against an order under section 35E by the Collector (Appeals); the anomalies are all clear; but we cannot force the law to do what we think it ought to do or what we believe it was meant to do. Unless the law is equipped with the necessary wherewithal to do a thing, we cannot yoke it to an operation it was not outfitted for. 32. Section 35B fixes and exhausts the decision/orders that can be arraigned before the Tribunal. For its part, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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