9911796707
TMI Blog1995 (10) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... . The respondent herein was assessed to tax for the year 1983-84 by an assessment order passed on August 25, 1988, under the Central Sales Tax Act. Against this order, an appeal was filed on September 27, 1988, i.e., after the amendment to the rule came into force. The rule, as amended, reads as follows: "33. (2)(i) Every such appeal shall be in form I and verified in the manner specified in the rules. (ii) It shall be in duplicate. (iii) It shall be accompanied by a treasury receipt in support of having paid: (a) in case where the levy of tax and surcharge or penalty is disputed, a fee calculated at the rate of two per cent of the disputed tax and surcharge or penalty subject to a minimum of Rs. 50 and a maximum of Rs. 1,000; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the point arising in this tax revision case is concluded by the aforementioned Division Bench decision wherein an identical question was decided by the Division Bench. The view taken by the Tribunal cannot be sustained in the light of the said judgment. The Division Bench referred to the decision of the Supreme Court in Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh [1953] 4 STC 114 and State of Bombay v. Supreme General Films Exchange Ltd. AIR 1960 SC 980 which are relied upon by the learned counsel for the assessee in the present case also. This is what the Division Bench had observed in the concluding paragraph: "From the above decisional law it emerges that right of appeal is a substantive right which cannot be impaired ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Division Bench in T.R.C. No. 300 of 1990 dated September 5, 1990 (State of Andhra Pradesh v. Shiv Shankar Oil Mill), with great respect to the learned Judges, we are constrained to hold is per incuriam since the binding precedents laying down relevant tests have not been noticed." The learned counsel for the respondent pointed out that in that case, the enhanced institution fee was Rs. 242 only and therefore the learned Judges did not consider that such enhanced fee had a tendency to curtail the right of appeal, whereas in the present case, the learned counsel points out that the assessee was called upon to pay the maximum of Rs. 1,000. In other words, the learned counsel for the assessee wants to confine the applicability o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... superior Tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by, the inferior court. A pre-existing right of appeal is not destroyed by an amendment if the amendment is not made retrospective by express words or necessary intendment. The fact that the pre-existing right of appeal continues to exist must, in its turn, necessarily imply that the old law which created that right of appeal must also exist to support the continuation of that right. As the old law continues to exist for the purpose of supporting the pre-existing right of appeal that old law must govern the exercise and enforcement of that right of appeal and there can then be no question of the amended provision preventing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed provision, the Legislature made it incumbent on the assessee to deposit the disputed tax and penalty as a condition precedent for preferring an appeal. According to the unamended provision, only the admitted tax was liable to be paid. Naturally, the new condition prescribed was so onerous that it had the effect of preventing an aggrieved assessee to avail of the appeal remedy. It was in this context that the aforementioned observations were made. The other judgment of the Supreme Court in State of Bombay v. Supreme General Films Exchange Ltd. AIR 1960 SC 980 does not also help the assessee. There, ad valorem court-fees was prescribed by the Court-fees (Bombay Amendment) Act, 1954. The suits were filed before that date. As the right o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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