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TMI Blog1983 (8) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the Stay application contended that right of appeal is a matter of substantive right and not merely a matter of procedure and thus right become vested in the appellants when the proceedings were first initiated against them, by issue of show cause notice dated 8-5-1981 and order passed by the Collector on 6-10-1982. This right could not be taken away by subsequent legislation except by express enactment or necessary intendment. Shri Narasimhan submitted that Section 35F of the Central Excises Salt Act, 1944 (hereinafter called the Act) requiring an appellant to make deposit of duty and penalty as pre-condition for an appeal was not applicable in the appellants case. He reiterated that even before the amendment in Section 35 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i on this argument tried to distinguish the ruling cited by Shri Narasimhan and submitted that in the light of her arguments ruling was not applicable to the case. 4. Arguments on the Stay application and the contentions aforesaid were heard on 2-6-1983. Though Stay was granted, the decision on the applicability or otherwise of Section 35F in the appellants case was reserved. Order on this contention is being passed now. 5. It might at the outset be stated that in this order, the nature and scope of incidental and ancillary powers of granting Stay which the Tribunal possessed independent of Section 35F of the Act, does not arise for consideration and it is not proposed to deal with the same. 6. Parties agreed before us that appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal and the latter made an assessment on the 8th April, 1950. The appellant referred an appeal on the 10th May, 1950 without depositing the amount of tax in respect of which he had appealed. The Board of Revenue was of opinion that Section 22(1) as amended applies to the case as the assessment was made, and the appeal was preferred after the amendment came into force, and rejected the appeal. The Supreme Court held that the right of appeal is a matter of substantive right and not merely a matter of procedure, and this right becomes vested in a party when the proceedings are first initiated in, and before a decision is given by, the inferior Court and such a right cannot be taken away except by express enactment or necessary intendment; t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 tot he 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. Dalimuddin (supra), namely, that after the amendment the court had no authority to entertain an appeal without a certificate from the Single Judge Rankin C.J. repelled this argument with the remarks at page 520 : Unless the contrary can be shown, the provision which takes away jurisdiction is itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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