It must be understood that correct to appeal is not a right-down correct nor indispensable ingredient of process of instinctive justice. Supreme Court made in Vijay Prakash v. CC [1989(39) ELT 178(SC)],

“Right to appeal is neither a rank correct nor an ingredient of instinctive justice the principles of which must be followed in all juridical and quasi-juridical adjudications. The correct to appeal is a statutory correct and it can be circumscribed by the conditions of the grant.”

The provision of appeal is contained in Section 35 (appeal to Appellate Commissioner) and Section 35B (appeal to Appellate Tribunal) of the Act. There is no requirement of any pre deposit of disputed duty/penalty amount in these Sections. Requirement of pre deposit is there in Section 35F of the Act, which reads as,

SECTION 35F.?Deposit, pending appeal, of duty demanded or penalty levied. — Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit  with  the  adjudicating  authority  the  duty  demanded  or  the  penalty levied :

 

Provided that where in any particular case, the [Commissioner (Appeals)] or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the [Commissioner (Appeals)] or, as the case may be, the Appellate Tribunal, may dispense with such deposit capable to such conditions as he or it may deem fit to enforce so as to safeguard the interests of revenue.

There is nothing in the Section which says that right to appeal granted under Section 35 or 35B is subject to the provision of Section 35F. On the contrary, the Section says- “Pre deposit, pending appeal, before adjudicating authority…………..”. Thus the Section imposes a duty on the appellant, pending appeal, to deposit the disputed amount to the adjudicating authority. The called “pending appeal” is important here to show that, fifty-fifty without the pre deposit, the challenge is pending. Further the deposit is not made to the appellate authority, but to adjudicating authority. The role of appellate authority is restricting in this Section to dispense the amount of pre deposit or passing such orders so as to safeguarding interest of revenue.

Reading the Sections together, following proposition emerges:

A. Right to appeal is allowing vide Section 35B of the Act.

B. Section 35B of the Act is not subject to Section 35F of the Act, i.e. right to appeal is there, even when no pre deposit is made.

C. Section 35F imposes a liability on the appellant to deposit disputed amount before adjudicating authority.

D. If no application under Section 35F, for dispension of pre deposit, is filed before appellate authority, appellate authority has no role to play.

E. If some application for dispension of pre deposit is filed, the appellate authority shall decide the application as per law.

F. If pre deposit is not stayed, or partial pre deposit is not made, the adjudicating authority can initiate the action for recovery of pre deposit.

I. Whether the adjudicating authority recovers the amount or not, or enjoining passed under Section 35F is obeyed or not, challenged under Section 35B is pending and alive.

Before we proceed further, we need to understand the nature of appeal in taxation matters. It is settled position of law that appeal under taxation statute is nothing but extension of original assessment proceeding. Thus when an appeal is filed, it means that assessment proceeding is not over. As the assessment proceeding is not over, the assessee is not required to pay any duty or penalty. Therefore, Section 35F take mere pre deposit of duty/penalty amount and not payment of duty/penalty amount. It is settled that payment under Section 35F or any payment pending appellate proceeding, with or without order of appellant authority is not a “payment of duty”. In fact, there cannot be a liability to pay duty, when assessment proceedings are pending before appellate authority.

Off course during assessment proceeding, it is required to safeguard the interest of revenue, and hence purveyed of pre deposit is made under Section 35F of the Act. It is to be noted that pre deposit is not required to be done before appellate authority, but before tried authority.

Merely because power has been given to appellate authorities to dispense with pre deposit under Section 35F, cannot be interpret as amounting to curtailment of power to decide challenged by appellate authority. It is seen that once appeal is filed under Section 35B of the Act, it can be disposed off only through an order passed under Section 35C of the Act, and there is no mention of dismissal of appeal for failure to pre stick the amount.

The argument was made in various cases, and various High Courts have accepted this position of law. In BD Steel v. UOI [1998 (103) ELT 218 (Bom DB)], Division Bench of the Bombay High Court held,

“It is, therefore, clear that the impugned enjoined came to be passed without hearing the petitioner. Dismissal of its appeal simplicitor for non-compliance of the condition for grant of stay, we feel, has no relation with dismissal of challenge in neglect. The Tribunal ought to have decided the appeal on merits. Since there is failure of principles of natural justice the impugned order is liable to be fit aside and the matter requires to be remanded to the appellate authority for disposal in accordance with law.”

Madhya Pradesh High Court examined the matter on legality and held in Kishori Pujari v. UOI [2005 (184) ELT 225 (MP)],

“Having considered the touched submission and on appreciation of the legal principles that emerges on a reading of the judgments referred to hereinabove, it is clear that when the petitioner had a statutory right of filing appeal before the Tribunal and in  exercise thereof appeal was filed, petitioner had a right of hearing and the petition has to be heard and decided on merit until and unless the Tribunal found that the appellant was not appearing and arguing the weighed deliberately dismissal of appeal mechanically by order simpliciter by direction is not justified. Even if the petitioner does not comply with the direction for deposit of the amount the only consequence thereof would have been rejection of the prayer made for interim relief on stay and to direct for recovery of amount in accordance with law. Dismissing the appeal merely on the ground that direction of pre-deposit having been fulfilled is not proper. That apart, the direction for pre-lodged has to be considered in the back drop of the financial hardship if any of the appellant.”

Recently the Calcutta High Court approved the position in case of Promising Exports Limited v. UOI [2009 (243) ELT 3 (Cal)].

In Vijay Prakash Mehata v. CC [1989 (39) ELT 178 (SC)], Hon’ble Supreme Court held that that right to appeal is conditional on fulfillment of conditions of Section 129E of Customs Act (parallel provision Section 35F of the Central Excise Act). Supreme Court held,

“The aforesaid Section provides a conditional right of appeal in respect of an appeal against the duty demanded or penalty levied. Although the Section does not expressly provide for rejection of the appeal for non-deposit of duty or penalty, yet it makes it obligatory on the appellant to deposit the duty or penalty, pending the appeal, failing which the Appellate Tribunal is fully competent to reject the appeal. See, in this connection, the observations of this Court in respect of Section 129 prior to substitution of Chapter XV by the Finance Act, 1980 in Navin Chandra Chhotelal v. Central Board of Excise & Customs & Ors. 1981 E.L.T. 679 (S.C.) = (1971 3 SCR 357). The proviso, however, gives power to the Appellate Authority to dispense with such deposit unconditionally or subject to such conditions in cases of undue hardships. It is a matter of judicial discretion of the Appellate Authority.”

It is humbly submitted that the Supreme Court is saying that appeal is conditional, however not giving any reason as to why it is conditional. No reason has been given as to why the Sections is being interpreted in this manner. Thus the judgment is per inquirium and not binding.

In para 10 of the judgment the Supreme Court says,

“Counsel referred us to the decision of this Court in Collector of Customs & Excise, Cochin & Ors. v. A.S. Bava [(1968 1 SCR 82) = 1978 E.L.T. (J 333)]. There this Court found that Section 35 of the Central Excises and Salt Act, 1944 (Excise Act) gave a right to appeal. Under Section 12 of the Act, the Central Government was authorised to apply to appeals under the Excise Act the provisions of the Sea Customs Act, 1878 dealing with the procedure relating to appeals. In exercise of that power, the provisions of Section 129 of the Act were made applicable to appeals under the Excise Act. The Section required an appellant to deposit, pending the appeal, the duty or penalty imposed, and empowered the Appellate Authority, in his discretion, to dispense with such deposit pending the appeal in any particular case. The respondent therein 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 petition in the High Court which was allowed, and the Collector was directed to hear the appeal on merits. This court held that Section 35 of the Excise Act gave a right of appeal and Section 129 of the Act whittled down that substantive right and, as such, Section 129 could not be regarded as procedure relating to appeals” within Section