9911796707
TMI Blog1983 (10) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... 12th February, 1982 : (b) The appeal was filed on 25-10-1982; (c) except for a statement that the Appellate Collector s order, unless stayed, will result in substantial temporary loss of legitimate revenue to the Central Government, there was neither any quantification of the exact amount of duty or penalty that would have become payable but for the Appellate Collector s order; nor any reasons given as to why it is anticipated that the revenue, if found due to the Appellant in the instant Appeal, will become irrecoverable from the Respondent. 3. It would, however, appear from the cross-objection filed for the Respondent - although no cross-objections could be entertained, since it was not as if the Respondent Appeal was allowed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a deposit is either made or dispensed with for undue hardship. It is, therefore, a clog or fetter on the right of Appeal. A right of Appeal is one conferred by statute. It is not an inherent right, but statutory, substantive and not merely procedural. It is subject to such conditions as the statute may prescribe. Such deposit may be dispensed with, by the Tribunal, if satisfied that it would cause undue hardship to the Appellant - subject to such conditions as to security, that may safeguard the interests of the Revenue; (c) Dispensing with the deposit is not, per se, a stay of recovery of the duty or penalty in question. Nothing prevents the recovery of such duty or penalty by the Revenue pending the hearing of the Appeal, even th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uched by our interlocutory order in this Appeal. The Tribunal s power of making interlocutory orders cannot, obviously, extend to interference in classification or consequent assessments subsequent to or beyond the scope of the instant Appeal. 6. Nor can any interlocutory order be made, unless the delay, if any, in filing the Appeal, is condoned. Surprisingly, there is no separate application for condonation of delay explaining each day s delay. All that has been stated in para 13 of the Grounds of Appeal itself is that, though the appeal is required to be filed within three months from the date of the communication of the order, the Appellant, therefore, requests that the delay may be condoned . 7. Before we proceed to the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-1982. The Rule cited also did not come into existence prior to 10-9-1982. It is not understood how the preamble refers to procedure not yet come into force; (e) on 12-2-1982, when the appeal was disposed of by the Collector (Appeals), the Appellant s remedy was actually by way of revision of the Central Government in terms of Section 36 of the Act, as it read at the relevant time and not by way of an appeal to the Tribunal; (f) no period of limitation was prescribed in terms of Section 36(1) for an Application of Revision preferred by a person aggrieved by the Appellate Collector s order. If, however, it was to be a suo motu Revision, a period of one year was prescribed in terms of the second proviso to sub-section (2) of Section 36 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time, as the case may be, is prescribed in a provision taking the place of the repealed provision, such shorter period of limitation or limitation prescribed for the first time, will apply from the date when the repealed provision ceases to govern pending actions; (j) again if a statutory right of Appeal within a prescribed period had been conferred in the place of a Revision without any period of limitation or a much larger period of limitation, as the case may be, the period of limitation prescribed for such an Appeal should be reckoned from the date when the right of Appeal for the first time had been conferred. (k) Seeing that the instant Appeal was filed within a few days of the date when the right of Appeal was conferred, (14 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal. On the face of this mandatory provision there is no scope for computing the period of limitation from any other date such as the date of enforcement of Section 35B. It is admitted position that the law of limitation, being a procedural law, has retrospective application to the extent it applies to pending actions but where the statute itself prescribes a formula for computing the limitation by providing the point from which limitation of three months it to be reckoned, the general principle of retrospective operation of procedural law cannot override the express statutory provisions. Therefore, the limitation of three months in the present case has to be computed from the date of the communication of the order to the party concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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