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TMI Blog2010 (2) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be dismissed after hearing the appellant on the point as to whether there is any genuine and justifiable ground for non-compliance of the said requirement within the time granted and for that purpose the Tribunal need not wait till the appeal gets ripe for final hearing. - E/849, 1332, 1834 & 1452-1453/2009 and ST/259 and - 205/2010-EX(PB), - Dated:- 19-2-2010 - Justice R.M.S. Khandeparkar, President and Shri Rakesh Kumar, Member (T) S/Shri Sumit Atri, S.K. Sarwal, Advocates, for the Appellant. S/Shri Nitin Anand, K.P. Singh, SDRs and B.K. Singh, Jt.CDR, for the Respondent. Amucus Curie - S/Shri L.P. Asthana with Abhishek Jaju and B.L. Narsimhan, Advocates. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. - The appellants herein failed to comply with the order passed by this Tribunal under proviso to Section 35F of the Central Excise Act, 1944 hereinafter called as "the said Act". Consequent to the failure to comply with the requirements of Section 35F in relation to deposit of the duty as well as non-compliance of the order in terms of the proviso to the said Section 35F, they were required to show cause as to why the appeals should not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be passed under the proviso the appellate authority is fully competent to reject the appeal of non-compliance with the provision of Section 129(1)". 6. Further, in Vijay Prakash D. Mehta v. Collector of Customs reported in 1989 (39) E.L.T. 178 (S.C), the appeals were dismissed by the Appellate Tribunal for non-compliance with the provisions of Section 129E of the Customs Act. Aggrieved thereby, the assessee had filed appeals. The Apex Court after considering the provisions of law relating to the appeals under the said Act, held thus :- "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 of the grant. ......... the right given under Section 12A of the Act as controlled by Section 129E of the Act, and that right is with a condition and thus a conditional right. The petitioner in this case has no absolute right of stay. He could obtain stay of realization of tax levied or penalty imposed in an appeal subject to the limitations of Section 129E. ............ It is not the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that "the right to appeal is not an absolute right. It is a statutory right and it can be circumscribed by conditions in the grant. The right given by Section 35B is a right with the condition imposed by Section 35F and thus a conditional right in respect of an appeal against the duty demanded or penalty levied. It is only upon fulfillment of the conditions imposed by Section 35F that the right to appeal becomes vested and exercisable by the appellant. Although there is no express provision for rejection of the appeal for non-deposit of duty or penalty, yet it makes it obligatory on the appellant to deposit the duty or penalty pending the appeal, failing which the appellate authority is fully competent to reject the appeal". 12. The Madras High Court in V.C. Soundarrajan v. Collector of Customs reported in 1993 (65) E.L.T. 358 (Mad.) held that "the right assured under Section 129E of the Customs Act to file an appeal is not an absolute right, nor an ingredient of natural justice and it is only a statutory right and can be circumscribed by the conditions". 13. The law as regards the consequence which are required to follow on failure to deposit the amount payable in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posal of the appeals filed under the respective Acts. Being a procedural provision, it cannot be disputed that the same is directory in nature. The Apex Court in Sambhaji v. Gangabai reported in 2009 (240) E.L.T. 161 (S.C.) had clearly held that the language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. A procedural prescription is the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Besides merely, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form. 18. If we peruse the provisions of law under Section 35C(2A) and or under Section 129B(2A), the same clearly provide for consequences to follow in case of non disposal of appeal within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is read in isolation the interpretation canvassed by Revenue may appear to be correct. But one cannot loose sight of the legal position : a proviso carves out an exception to the main rule. 8. When legislature has provided in the main provision, i.e. sub-section (2A) of Section 35C of the act, that CESTAT may hear and decide the appeal within a period of three years, where it is possible to do so, legislature is well aware of the administrative exigencies and difficulties of the said body. There could be a host of reasons ranging from non-availability of a bench due to non-appointment of adequate number of technical and/or judicial members at a particular station to the quantum and quality of appeals at a particular station. One cannot and should not even attempt to exhaustively list these. Suffice it to state - the discretion available to CESTAT under Section 35C(2A) of the Act does not stand obliterated by insertion of the two provisos, and more particularly by the Second Proviso. 13. Therefore, held by the Apex Court in case of Commissioner of Customs Central Excise, Ahmedabad v. Kumar Cotton Mills (P) Ltd., (supra) an assessee cannot be punished for matters which may be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that the requirement of deposit arises during the 'pendency' of the appeal and it cannot be disputed that the appeal would be 'pending' till it is taken up for final hearing and disposal in terms of Section 35C(1) and 129B(1) as the case may be. Obligation to deposit arises during "the pendency" of the appeal and appeal would remain "pending" till it is taken up for final hearing and disposal in regular course. 24. The Apex Court in Shyam Kishore and Others was dealing with a matter in relation to the requirement of deposit of Municipal tax under Section 170 of Delhi Municipal Corporation Act, 1957. Therein, the said section required that "no appeal shall be heard and determined under Section 169 unless "(i) .... (ii) the amount, if any, in dispute in the appeal has been deposited by the appellant in the office of the Corporation". The Apex Court while distinguishing its decision in Lakshmiratan Engineering Works Ltd. v. CST (Judicial)-I reported in AIR 1968 SC 488 which was delivered on the basis of terminology used in Section 169 under U.P. Sales Tax Act, 1948 which comprised of the word 'entertain' in relation to the appeal under the said Act, and considering the phraseo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em fit and proper in that regard. Obviously such conditions would include the period within which the condition or conditions as the case may be, is or are to be complied with. 27. Learned Advocate Shri Narsimhan however, submits that the order to be passed in exercise of powers vested under proviso to Section 35F or 129E cannot be beyond the scope of the main section as the proviso cannot travel beyond the scope of the main section. There can hardly be dispute on this proposition. However, passing an order prescribing the time limit for compliance of the condition cannot be construed as an exercise of the powers of the Appellate Tribunal beyond the scope of the proviso to Section 35F or 129E, as such a power is incidental and or ancillary to the power to impose the condition while exercising discretion to grant waiver of the amount or part thereof required to be deposited under the said provision of law. 28. However, bearing in mind the provision of law, it cannot be said that the dismissal of appeal would be immediately on failure to comply with the requirement to Section 35F or 129E or the order passed under proviso thereto. Certainly, before dismissal of an appeal for non-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of law comprised under Section 35C read with Section 35F. The contention contrary to the ruling of the Apex Court cannot be entertained. 32. The Tribunal is bound by the law laid down by the Apex Court. Any decision of any other authority taking a view contrary to the law laid down by the Apex Court cannot be construed to have overruled the law laid down by the Apex Court, nor any such decision which is contrary to the law laid down by the Apex Court would be binding upon the Tribunal. The Tribunal is bound to follow the law as laid down by the Apex Court. Any decision of Hon'ble High Court, cannot be said to be binding if it happens to be contrary to the law laid down by the Apex Court on the point in issue. If we peruse the decision of the Calcutta High Court in Promising Exports Ltd., with utmost respect, we find it difficult to reconcile the same with the law laid down by the Apex Court on the point in issue in above referred decisions of the Apex Court. 33. Before we part with the matter, we place on record our appreciation for an able assistance provided by Advocate L.P. Ashthana and Advocate B.L. Narsimhan in the matter. 34. For the reasons stated above, it ..... 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