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TMI Blog1996 (8) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of an order passed by the Collector (Appeals) under Section 35B where the duty or the fine or penalty did not exceed Rs. 10,000. This provision of Section 35B second proviso of the Act came to be amended revising the limit to Rs. 50,000/- only on 13-5-1993. Therefore, when the appeal had been filed, the appellant had a statutory vested right to have his appeal disposed of on merits without being rejected at the stage of admission. The petitioner at the relevant time had the right to have his appeal heard on merits since the amount involved was more than Rs. 10,000/-. The subsequent amendment, the learned Counsel contended, would not take away or abrogate the vested statutory right of appeal which ensured to the appellant under law. Since the Tribunal had taken the peculiar limit of Rs. 50,000/- in terms of the amended Section 35B second proviso of the Act which amendment came into force only on 13-5-1993 and since the position as it existed prior to the amendment limiting the discretion for rejecting an appeal at the admission stage was only Rs. 10,000/- the order of the Tribunal rejecting the petitioners appeal without admitting the same is not correct and an error apparent on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at this right of appeal inheres in the appellant and existed as on and from the date the suit commenced although it may be actually exercised when the obvious judgment is pronounced and such right is to be governed by the law prevailing at the date of the execution of the proceeding and not by the law that prevailed either at the date of its decision or for that matter on the date of the filing of the appeal. It is also axiomatic that such a vested substantive right of appeal can be taken away only by a subsequent enactment if such subsequent enactment expressly or by necessary implication or intendment provides for the same and not otherwise. It could be hardly emphasized that the right of appeal which is governed by the law as it existed as a vested right in a party when the proceedings were first initiated could not be regarded as a mere alteration in procedure or alteration regulating the exercise of the right of appeal even if a subsequent statutory enactment were to whittle down, curtail or abrogate the right itself. In other words, if a person had statutory vested right even if the law were amended at a later point of time either taking away the right of appeal or restrictin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter and on the basis of the well settled legal proposition cited supra and in the interests of justice, the apparent error is rectified by recalling the order of the Tribunal. In the result, the order of the Tribunal is recalled and the registry is directed to list the appeal for disposal on merits in accordance with law after due notice to the authorities concerned. Dated : 21-8-1995 Sd/- (S. Kalyanam) Vice President 6. [Contra per : V.P. Gulati, Member (T)]. - I have perused the order recorded by my learned Brother. I am not able to agree with him that the substantive right of appeal has been in any way affected or taken away by the amendment of proviso (ii) under which the discretion has been vested with the Appellate Tribunal to refuse and accept an appeal where the difference of duty involved or amount of fine or penalty determined by the order appealed against is raised from the limit of Rs. 10,000/- to Rs. 50,000/-. 7. 1 observe the right of the appellant to file an appeal against the order of a Collector (Appeals) continues to subsist and the appeal filed is required to be heard by the Tribunal for taking a decision. It is not as if the discretion is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er hearing the appellants, the appeal would be dismissed under the said proviso. The question to be considered is whether by the said amendment any substantive right has been taken away or it has been whittled down or the appellant is deprived of an effective right of appeal. As mentioned earlier, the right to appeal continues to exist and it is only in the method of consideration of the appeal that a change has been brought about. The discretion vested in the Tribunal in the matter of dismissal of the appeal cannot be taken to have whittled down the right to appeal and therefore has to be considered as procedural in nature. It has been authoritatively announced by the Board in the Colonial Sugar Refining Co. v. Irving, where it is in effect laid down that, While provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which, if applied retro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantive law determines rights and procedural law deals with remedies is wholly valid, for neither the entire law of remedies belongs to procedure nor are rights merely confined to substantive law. It appears to us that there is a difference between the manner in which jurisprudential lawyers consider the question and the way in which judges view the matter. The present tendency is that when a question of limitation arises, the distinction between so called substantive and procedure statutes of limitation may not prove to be a determining factor but what has to be considered is whether the statute extinguished merely the remedy or extinguishes the substantive right as well as the remedy. (The Court finally held that since the rule in the present case barred the claim and extinguished the right it fell outside `procedure and was substantive and outside the power of Government to make rules of procedure)". In the present case, it is to be observed as the right of appeal has not been extinguished and therefore the proviso can be said to have only brought about a procedural change and which could be retrospective in application. I, therefore, hold there has been no mistake in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andi, learned DR for the department reiterated the reasoning recorded by learned Member (T). 12. I have considered the submissions of both the sides. Para 10 of the decision relied upon by the learned Counsel is reproduced below : 10. Sri Ganapathy Aiyer urges that the language of S. 22(1) as amended clearly makes the section retrospective. The new proviso, it is pointed out peremptorily requires the authority not to admit the appeal unless it be accompanied by a satisfactory proof of the payment of the tax in respect of which appeal is preferred and this duty the authority must discharge at the time the appeal is actually preferred before him. The argument is that after the amendment the authority has no option in the matter and he has no jurisdiction to admit any appeal unless the assessed tax be deposited. It follows, therefore, by necessary implication, according to the learned Advocate, that the amended provision applies to an appeal from an assessment order made before the date of amendment as well as to an appeal from an order made after that date. A similar argument was urged before the Calcutta Special Bench in Sardar Ali v. Dolimuddin (supra), namely, that after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in AIR 1957 SC 540 which is relied upon by the learned Counsel is relevant. In this judgment, in para 23, their lordships have held as follows : 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 . In the present case, the amended proviso enhanced the limit to Rs. 50,000/-. This amendment has not expressly or by necessary intendment taken away the appellant s right of appeal in terms the old proviso wherein the limit was Rs. 10,000/-. In this view of the matter, I agree with the opinion of the learned Vice President (J) and order that the appeal shall be listed for being heard on merits. The file may now be placed before the Bench for necessary orders in this regard. Sd/- (T.P. Nambiar) Member (J) FINAL ORDER In view of the majority decision, the order of the Tribunal is recalled and the registry is directed to list the appeal for disposal on merits in accordarce with law and after due notice to the authorities concerned. Sd/- (T.P. Nambiar) Member (J) Dated : 1-8-1996 Sd/- (V.P. Gulati) Member (T) Dated : 1-8-1996 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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