9911796707
TMI Blog2001 (2) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner is a registered dealer under the Act. It is engaged in the manufacture and sale of paraffin wax. Vide orders dated January 29, 1999 and April 2, 1999, the Excise and Taxation Officer (Enforcement)-cum-Assessing Authority created an additional demand of Rs. 11,13,372 against the petitioner towards the tax and penalty, who challenged the same by filing an appeal under section 39(1) of the Act along with an application for exemption from payment of tax in terms of section 39(5). By an order dated September 6, 1999, respondent No. 3 partly accepted the petitioner's request for hearing the appeal without insisting on pre-deposit of tax subject to the condition of payment of Rs. 2,78,343 representing 25 per cent of the disputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilar provision contained in section 20(5) of the Punjab General Sales Tax Act, 1948 was considered by a Full Bench of this court in Emerald International Ltd. v. State of Punjab [2001] 122 STC 382; (1997) (2) 116 PLR 797. After a comprehensive analysis of the relevant provisions and reference to the judicial precedents on the subject, the Full Bench culled out the following propositions: (a) The appeal is a creation of a statute and in case a person wants to avail of the right of appeal, he has to accept the conditions imposed by the statute. (b) The right of appeal being a creature of statute, the Legislature could impose conditions for exercise of such a right. Neither there is a constitutional nor legal impediment for imposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roved by the Supreme Court in State of Haryana v. Maruti Udyog Ltd. [2001] 124 STC 283; JT 2000 (10) SC 166 with the slight modification that while considering the application under section 39(5) for exemption from payment of tax, the appellate authority/Tribunal cannot delve into the merits of the challenge to the order passed by the Assessing Authority and/or appellate authority. 7.. In the light of the above, we have to determine whether the orders dated September 6, 1999 and November 2, 1999 passed by respondent No. 3 and the Tribunal are vitiated by any such error of law which may justify issue of a writ of certiorari. A perusal of the order dated September 6, 1999 shows that after considering the averments made in the application f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... keep on making the payment by instalments regularly without delay or default till the final hearing so long as the dues are outstanding and shall intimate the compliance thereof on each date of hearing. Should the appellant fail for any reason to comply with the aforesaid directions his appeals shall be liable to be dismissed in default. 8.. The Tribunal modified the order passed by respondent No. 3 and considerably reduced the amount payable by the petitioner. This is clearly borne out from the perusal of the order dated November 2, 1999, paragraphs 3, 4 and 5 of which read as under: 3. Arguing on stay application, the counsel for the appellant submitted that the appellant-firm suffered heavy losses during 1998-99. Due to accide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prayer of the petitioner for total exemption, are quite germane to the exercise of the power under proviso to section 39(5) of the Act and we do not find any valid ground to interfere with the discretion exercised by him and the Tribunal more so because the petitioner has not controverted the fact that it had closing stock of Rs. 15,23,946 which can be utilised for defraying its liability. For the reasons mentioned above, the writ petition is dismissed. However, we accept the oral request made by Shri Avneesh Jhingan for grant of some time to the petitioner to deposit the amount in terms of the order dated November 2, 1999 and direct that if the said amount is deposited within four weeks from today, the appeal filed by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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