Appeals Nos 2007 and 2008 of 1966
Appeals by special leave from the judgment and order dated September 28 1965 of the Kerala High Court in OP Nos 219 and 223 of 1964
83 DR Prem R N Sachthey and section P Nayar for the appel lants in both the appeals
ST Desai and R Gopalakrishnan for the respondent in both the appeals
The Judgment of the Court was delivered by Sikri J
These appeals by special leave are directed against the judgment of the High Court of Kerala allowing two petitions filed by the respondent Ms A section Bava under article 226 of the Constitution
The High Court by this judgment quashed two orders dated February 4 1964 and directed the Collector of Customs  Central Excise Cochin to hear the appeals preferred by Ms A section Bava
The relevant facts are as follows M  section A section Bava
hereinafter referred to as the petitioner is a firm of dealers in Tobacco
By two orders of adjudication dated March 31 1963 the Assistant Collector of Customs demanded the payment of duty under Rule 40 of the Central Excise and Salt Rules 1944
The petitioner filed appeals against these orders on or about July 4 1963 to the Collector of Customs  Central Excise
The petitioner made a representation on October 3 1963 requesting that it may not be required to deposit
the duty demanded pending appeal
The Collector by letter dated January 9 1964 rejected the representation and requested the petitioner to deposit the duty within 15 days of the receipt of the letter
On the petitioner failing to deposit the amount the appeals were dismissed on December 4 1964
Thereupon as already stated the petitioner filed two petitions under article 226 and the petitions having been allowed and the appellant having obtained special leave the appeals are now before us
The High Court allowed the petitions on the ground that the notification No 6863 dated May 4 1963 issued under section 12 of the Excise and Salt Act 1944 hereinafter referred to as the Excise Act declaring that section 129 of the  relating to matters specified therein shall be applicable in regard to like matters in respect of the duties imposed by section 3 of the Excise Act was in excess of the powers conferred under section 12 of the Excise Act
The High Court also rejected the argument of the Collector of Customs and Central Excise that the petitioner having invoked section 129 of the  in the appeals preferred by it by praying for the dispensation of deposit was precluded from proceeding under article 226 of the Constitution
The learned counsel for the appellants has raised three points before us 1The petitions under article 226 were not maintainable as the petitioner did not avail himself of the remedy of revision provided by section 36 of the Excise Act
pN1SCI 7a 84 2The petitioner having availed of the remedy under section 12 of the was debarred from challenging the impugned notification dated May 4 1963
3The impugned notification applying section 129 of the Custom Act was good
There is no force in the first point
First the point was no taken in the High Court
Secondly it is settled that the existence of a remedy by way of revision does not bar the jurisdiction of the High Court to entertain a petition under article 226
Moreover the petitioner had alleged that the Collector had no jurisdiction to demand the deposit or duty pending the appeals as the notification dated May 4 1963 was bad insofar as it applied section 129 of the 
In these circumstances it was not necessary for the petitioner to have filed revisions
There is equally no force in the second point
If the petitioner had not applied for dispensation of the deposit of the duty the appellants would have contended that the petitions under article 226 were not maintainable
Moreover as already stated the petitions raised a question of jurisdiction
To appreciate the third point it is necessary to extract the relevant statutory provisions
Section 12 of the Excise Act authorises the Central Government to apply provisions of the  now replaced by the  in the following terms 12
The Central Government may by notification in the Official Gazette declare that any of the provisions of the  relating to the levy of an exemption from customs duties drawback of duty such modifications and alterations as it may consider necessary or desirable to adapt them to the circumstances be applicable in regard to like matters in respect of the duties imposed by section 3
The relevant part of the impugned notification dated May 4 1963 reads as follows  In exercise of the powers conferred by Sec 12 of the Central Excise  Salt Act 1944 1 of 1944 the Central Government declares that the provisions of Section 129 of the  relating to matters specified herein shall be applicable in regard to like matters in respect of the duties imposed by Sec 3 of the first mentioned Act  Section 129 of the reads thus 129
1 Where the decision or order appealed against relates to any duty demanded in respect of goods 85 which are not under the control of customs authorities or any penalty levied under this Act any person desirous of appealing against such decision or order shall pending the appeal deposit with the proper officer the duty demanded or the penalty levied Provided that where in any particular case the appellate authority is of opinion that the deposit of duty demanded or penalty levied will cause undue hardship to the appellant it may in its discretion dispense with such deposit either unconditionally or subject to such conditions as it may deem fit
2If upon any such appeal it is decided that the whole or any portion of such duty or penalty was not leviable the proper officer shall return to the appellant such amount of duty or penalty as was not leviable
 It will be noticed that section 129 requires an appellant to deposit the duty or penalty levied pending an appeal
In other words before an appeal can be heard the appellant must deposit the duty or penalty levied
But under section 35 of the Excise Act a person Aggrieved byany decision or order has an unfettered right to appeal
Thequestion that arises in these appeals is whether the provisions ofs
129 of the can be said to be provisions relating to procedure relating to appeals  within section 12 of the Excise Act
As we have already said the appeals are filed under section 35 of the Excise Act
Section 129 of the debars the hearing of them unless the duty or penalty is paid
This it seems to us is not procedure relating to appeals
This Court in Hoosein Kasam Dada India Ltd vs The State of Madhya Pradesh1 had to consider a similar provision in section 22 of the Central Provinces and Berar Sales Tax Act 1947
Section 221 as originally enacted read thus  22
1 Any dealer aggrieved by an order under this Act may in the prescribed manner appeal to the prescribed authority against the order Provided that no appeal against an order of assessment with or without penalty shall be entertained by the said authority unless it is satisfied that such amount of tax or penalty or both as the appellant may admit to be due from him has been paid 1 19539874 STC 114 86 It was amended thus 22
1 Any dealer aggrieved by an order under this Act May in the prescribed manner appeal to the prescribed authority against the order Provided that no appeal against an order or assessment with or without penalty shall be admitted by the said authority unless such appeal is accompanied by a satisfactory proof of the payment of the tax with penalty if any in respect of which the appeal has been preferred
SR Das J as he then was repelled the argument of the learned Advocate that the requirement as to the deposit of the amount of the assessed tax does not affect the right of appeal itself which still remains intact but only introduces a new matter of procedure  and observed There can be no doubt that the new requirement touches  the substantive right of appeal vested in the appellant
Nor can it be overlooked that such a requirement is calculated to interfere with or fetter if not to impair or imperil the substantive right
The right that the amended section gives is certainly less than the right which was available before
A provision which is calcu lated to deprive the appellant of the unfettered right of appeal cannot be regarded as a mere alteration in procedure
Indeed the new requirement cannot be said merely to regulate the exercise of the appellant s pre existing right but in truth whittles down the right itself and cannot be regarded as a mere rule of procedure
 These observations are fully applicable in the present case
1 Section 35 of the Excise Act gave a right of appeal but section 129 of the whittles down the substantive right of appeal and accordingly it cannot be regarded as procedure relating to appeals within section 12 of the Excise Act
The appeals accordingly fail and are dismissed with costs
One hearing fee
V P S Appeals dismissed


Summary:
Under section 35 of the Central Excise and Salt Act 1944 Excise Act a person aggrieved by any decision or order under the Act and rules has an unfettered right of appeal
Under section 12 of the Act the Central Government may apply to appeals under the Excise Act the provisions of the Customs Act dealing with the procedure relating to appeals In exercise of this power the provisions of section 129 of the Customs Act were made applicable to Appeals under the Excise Act
The section requires an appellant to deposit pending the appeal the duty or penalty imposed and empowers the appellate authority in his discretion to dispense with such deposit pending the appeal in any particular case
The respondent filed an appeal against the duty imposed on him under the Excise Act and prayed for dispensation of the deposit
The Collector who was the appellate authority rejected the prayer and
when no deposit was made within the time fixed dismissed the appeal
The respondent filed a writ petition in the High Court which was allowed and the Collector was directed to hear the appeal on merits
The Collector appealed to this Court
HELDSince section 35 of the Excise Act gave a right of appeal and section 129 of the Customs Act whittled down that substantive right section 129 could not be regarded as procedure relating to appeals within section 12 of the Excise Act
The High Court was therefore right in F holding that the application of section 129 of the Customs Act to appeals under the Excise Act was in excess of the powers conferred under section 12 of the Excise Act
The facts that an alternative remedy was available to the respondent under the Excise Act and that he invoked the dispensing power of the appellate authority under section 129 of the Customs Act did not bar the jurisdiction of the High Court to entertain the writ petition especially when the jurisdiction of the Collector to insist upon the deposit of duty pending appeal was itself questioned
84B D 86F G Hoosein Kasam Dada India Ltd vs The State of Madhya Pra desh  4 STC 114 followed