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TMI Blog2009 (3) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... n 8 (1) of the CST Act provides that every dealer who in the course of inter state trade or commerce sells to the Government any goods would be taxed at a concessional rate & Section 8(4) of the CST Act provides that such dealer has to obtain a declaration duly filled in by an authorised officer of the Government. Petitioner had obtained declaration form from South Eastern. Railway. Marketing Division of the Petitioner's company having its place of business in Vishakhapatnam effected the sale of petroleum products- High Speed Diesel & lubricants from Vishakhapatnam to its customer South Eastern Railways of various destinations in the State of Orissa. Opposite Party No. 3 issued notices on 21st January, 2002 (Annex.-2 series) asking the Petitioner to show cause as to why it should not pay entry tax on the scheduled goods i.e. High Speed Diesel imported from outside the State of Orissa. Petitioner filed its reply to the said show cause on 5th February, 2002 (Annex.-3) explaining that sale of said goods was made in the course of inter state trade. Hence liability of payment of entry tax would be on South Eastern Railway i.e. the purchaser. Opposite Party No. 2 issued a circular da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s merit & is liable to be dismissed. 5. We have considered the rival submissions made by the Learned Counsel for the parties & perused the record. 6. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors. AIR 1999 SC 2213, the Hon'ble Supreme Court held as under: It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigant being a substantive statutory right it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained & no Court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. 7. Further, there can be no quarrel to the settled legal proposition that right of appeal may not be absolute. The legislature can put conditions for maintaining the same. In Vijay Prakash D. Mehta & Jawahar D. Mehta v. Collector of Customs (Preventive), Bombay AIR 1988 SC 2010, the Hon'ble Apex Court held as under: Right to appeal is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in all ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not. Similar view has been reiterated by the Hon'ble Supreme Court in The Commissioner of Income Tax, West Bengal-I, Calcutta v. Vegetables Products Ltd. AIR 1973 SC 927. 12. It is the settled legal proposition that taxing statute must be construed strictly (vide Manish Maheshwari v. Asst. Commissioner of Income Tax and Ors. AIR 2007 SC 1696; Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & ETIO and Ors. AIR 2007 SC 1984; & Bhavya Apparels (P) Ltd. and Anr. v. Union of India and Anr. (2007) 10 SCC 129). 13. In view of the above, it becomes evident that the appeal is a statutory right, which can be created only by the Legislature & it does not lie by acquiescence I consent of the parties or even the Writ Court is not competent to create the Appellate forum if not provided under the Statute. If legislature in its wisdom has imposed certain conditions, like pre-deposit for the purpose of filing or hearing of the appeal, the Courts are s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the provisions contained in first proviso to Sections 173 & 217 (4) of the Motor Vehicles Act, 1988 dealing with an accident claim filed under Section 110 of the Motor Vehicles Act 1939, Under the Act 1939, there was no requirement of pre deposit condition. However, Under Section 173 of the Act 1988 a pre deposit condition has been incorporated. The Apex Court held that as the proviso of Section 173 does not apply retrospectively either by necessary implication or expressly the appeal is to be decided without enforcing the pre-deposit condition. The right of appeal under the old Act 1939 would not be dislodged by the proviso to Section 173 of the Act, 1988. 18. Hoosein Kasam Dada (India) Ltd. v. State of M.P. AIR 1953 SC 221; State of Bombay v. Supreme General Films Exchange Ltd. AIR 1960 SC 980; & Vitthalbhai Naranbhai Patel v. Commissioner of Sales Tax AIR 1967 SC 344, the Apex Court had taken a view that unless the new Act expressly or by necessary implication makes the provision applicable retrospectively, the right to appeal will crystallize for the Appellant in the institution of the application in the Tribunal & that vested right of appeal would not be dislodged by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eposit condition. However, it will depend upon the language of statutory provisions & particularly the words use therein as to whether the memo of appeal can be presented/filed or instituted without meeting the pre-deposit condition. In case "entertaining" the appeal is not permissible, the appeal can be filed, but may not be heard on merit unless the pre-deposit condition is met. The pre-deposit condition is imposed to regulate the procedure of appeal. Therefore, in such an eventuality, where there is no prohibition for filing the memorandum of appeal without meeting "the pre-deposit condition, the appeal can be heard only after meeting it. 23. The Apex Court time & again held that right of appeal is a substantive right, but how the appeal is to be decided is a matter of procedure. The rules of procedure are intended to advance justice & not to defeat it. "Procedural law is intended to facilitate & not to obstruct the course of substantive justice." (vide Hoosein Kasam Dada (India) Ltd. v. State of M.P. AIR 1953 SC 221; Garikapati Veeraya v. N. Subbiah Choudhry AIR 1957 SC 540; Ganesh Trading Co. v. Moji Ram AIR 1978 SC 484; Harcharan v. State of Haryana AIR 1983 SC 43; & Shiv Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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