Judgment Case ID: 2231

Judgment:
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 O.P. Nos. 219 and 223 of 1964. 83 D.R. Prem	 R. N. Sachthey and section P. Nayar	 for the appel lants (in both the appeals). S.T. 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	 M/s. 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 M/s. 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. 68/63 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: (1)The 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. p(N)1SCI 7(a) 84 (2)The petitioner having availed of the remedy under section 12( of the was debarred from challenging the impugned notification	 dated May 4	 1963. (3)The 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. (2)If 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 Pradesh(1) had to consider a similar provision in section 22 of the Central Provinces and Berar Sales Tax Act	 1947. Section 22(1)	 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) [1953]987;4 S.T.C 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. S.R. 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. HELD:Since 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 S.T.C. 114	 followed.