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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 ..... e dismissed on that count. In answer thereto, placing reliance in the decision of the Calcutta High Court in Promising Exports Limited v. Union of India reported in 2009 (243) E.L.T. 3 (Cal.) it is sought to be contended that Section 35F is controlled by Section 35(c)(2A) of the said Act and therefore the appeal can not be dismissed on mere failure to comply with the said requirements of Section 35F, but the same has necessarily to be disposed of on merits. 2. Since, a very important point of law was sought to be raised in the matters, the same was directed to be fixed for hearing today while appointing Shri L.P. Asthana and Shri B.L. Narsimhan, learned Advocates as the amicus curie to assist the Tribunal in the matter, for arriving at an appropriate decision on the said point. 3. We have heard at length, both the amicus curie, the learned Advocates for the parties and the learned representatives for the Department on the said point and as regards the consequences which could follow on failure to comply with the requirement of the provision of Section 35F of the said Act in relation the need for deposit of the amount in terms of the order sought to be challenged in the appeal as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication by itself following the rules of natural justice would be violative of any right - constitutional or statutory without any right of appeal, as such. If the Statute gives a right to appeal upon certain conditions, it is upon fulfillment of those conditions that the right becomes vested and exercisable to the appellant". 7. The High Court of Delhi in Usha Udyog v. CEGAT reported in 2003 (156) E.L.T. 201 (Del.) held thus :- "Requirement of deposit of the amount in dispute is a condition precedent for entertaining the appeal and not for filing the appeal. Failure to deposit the amount in question would render the appeal incompetent". 8. While arriving at the above conclusion, the Delhi High Court had, while referring to the provisions relating to appeal under Workmen's Compensation Act 1923, had taken note of two decisions. One in D. Narayanan Nair v. Union of India [(1990) 2 LLJ 520)] wherein it was held that provision which requires deposit of fee before resorting to the remedy of the appeal cannot be said to be illegal and the inconvenience caused to the appellant to make payment is no reason to strike down the said statutory provision. 9. Another decision was in Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in the appeal or as per the order passed by the Appellate Tribunal in exercise of powers under proviso to Section 35F or 129E or 86(7) of the relevant statutes is well settled by the decisions of the Apex Court and the High Courts, and even though the statutory provisions do not expressly provide for rejection of the appeal on such failure, the power in that regard of the Appellate Tribunal cannot be disputed, rather the Tribunal is required to exercise such power unless the facts and the circumstances of a case warrant and justify to the contrary. 14. However, learned Advocate for the assessee drawing our attention to Section 35(C) (2A) of the Central Excise Act and the decision of the Calcutta High Court in Promising Exports Limited (supra) submitted that Section 35F cannot be read independently of Section 35(C)(2A) otherwise the latter provision of law would be rendered otiose. 15. Section 35C(2A) of the Central Excise Act reads thus :- "The Appellate Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of three years from the date on which such appeal is filed : Provided that where an order of stay is made in any proceedings relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a statutory provision specifically prescribes certain time limit for exercise of power and simultaneously also specifies consequences to follow in case of non-compliance thereof, it is a settled law that in such a case the consequences being specified, there cannot be any room to import or read into it some other consequences unless they are clearly warranted and justified. The Apex Court in Baru Ram v. Smt. Prasanni and others reported in AIR 1959 SC 93 and Sharif-ud-Din v. Abdul Gani Lone reported in AIR 1980 SC 303 = (1980) 1 SCC 403 had clearly ruled that whenever a statute requires a particular act to be done in a particular manner and also lays down that the failure to comply with the said requirement would yield a specific result, it would be difficult to accept the argument that the failure to comply with such requirement could lead to any other consequence. 19. Besides, the time limit prescribed for disposal of appeal is not mandatory in nature. The limit is qualified by prefix "where it is possible to do so". Being so, the Tribunal is certainly expected to dispose of the appeals as far as possible within three years. The period is restricted to 180 days in case of stay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee. The situations set out by the Apex Court in its order are only illustrative and not exhaustive. The object of the provision is expressed by the Apex Court to be for the purpose of curbing the dilatory tactics of assessees, who having obtained an interim order in their favour, seek to continue the interim order which delaying the disposal of the proceedings. The observations i.e. the last sentence on which reliance has been placed by the learned Senior Stand. Counsel regarding latitude being given to the Tribunal are relatable only in the situation where extension of period of stay is sought". 21. In this regard one cannot lose sight of the decision of the Apex Court in CC&CE, Ahmedabad v. Kumar Cotton Mills Pvt. Limited reported in 2005 (180) E.L.T. 434 (S.C.) wherein it was held that :- "The provision has clearly been made for the purpose of curbing the dilatory tactics of those assessees who, having got an interim order in their favour, seek to continue the interim order by delaying the disposal of the proceedings. Thus, depriving the revenue not only of the benefit of the assessed value but also a decision on points which may have impact on other pending matters" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Municipal Corporation Act, 1957, held that "In the present statutory context, it sounds plausible to say that such an appeal can be admitted or entertained but only cannot be heard or disposed of without pre-deposit of the disputed tax...... We, would, therefore, read clause (b) of Section 170 only as a bar to the hearing of the appeal and its disposal on merits and not as a bar to the entertainment of the appeal itself." 25. The decision in Shyam Kishore & Others case clearly lays down the law that when a statute requires the appellant to deposit the amount in dispute as a pre-condition for hearing the appeal, then in case of failure thereof, question of hearing the appeal on merits does not arise and the appeal can be dismissed in liminee for non-compliance of the said requirement and in that regard, even in the absence of specific provision of law, the incidental and ancillary powers of the Tribunal cannot be curtailed except to the extent specifically precluded by the statute. The decision nowhere holds that the appeal should wait till it is ripe for final hearing. 26. The expression "pendency of appeal" has not been defined in the relevant statutes. But undisputedly it will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deposit of amount or the conditions imposed, it would be necessary to give opportunity of being heard to the appellants. There could be various reasons for non-compliance of the requirement. In case, such reasons are found to be genuine and justifiable, the same may be sufficient to condone the failure or delay in compliance. Obviously it may not justify immediate dismissal of the appeal on the ground of non-compliance of the order. But it cannot be said that it is necessary to wait till the appeal gets ripe for final hearing in regular course. In fact, this point also stands already answered by the Courts, though may not be in so many words. 29. In Naveen Chandra Chhotelal case itself, it was held that "Retention of such an appeal on file will serve no purpose whatsoever because unless Section 129(1) is complied with, the appellate authority certainly cannot proceed to hear the appeal on merits. Therefore, the logical consequence of failure to comply with Section 129(1) is the rejection of appeal on that ground". 30. In Usha Udyog case, it was held that "failure to deposit the amount in question would render the appeal incompetent". Acceptance of contention canvassed by lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iss the appeal in case of failure to comply with the requirement of deposit under Section 35F of the Central Excise Act, Section 129E of the Customs Act and Section 87(7) of the Finance Act, 1994 as also to dismiss the appeal for failure to comply with the order passed in exercise of powers under the proviso to the said sections and for that purpose need not wait till the appeal gets ripe for final hearing. Moment it is revealed during the pendency of the appeal that the appellant has either failed to deposit the amount in terms of said provision of law or in compliance with order passed under the said provision of law, the appeal could 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. 35. The point for consideration is accordingly answered in above terms and disposed of as above. All the appeals be fixed for hearing, on the point as to whether there is any genuine and justifiable ground for non-compliance of the said requirement within the time specified under r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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