1. The Ferro Coatings & Colours Ltd., P.O. Joka, Dist. 24-Parganas has presented a Stay Application in the Registry on the 13th day of August, 1984. This Stay Application arises out of Appeal No. CD(S) CAL- 183/80.
It is a transferred matter. The applicant had filed a revision application before the Secretary, Ministry of Finance (Dept. of Revenue), New Delhi on the 13th day of March, 1980. The same has been transferred to this Tribunal under Section 131B of the Customs Act, 1962 and is to be disposed as an appeal.
2. Shri P.R. Biswas, the learned consultant has appeared on behalf of the applicant. He has pleaded that in the instant case the provisions of Section 129E of the Customs Act, 1962 are not applicable as there was no requirement of predeposit of penalty under the old Section 131 of the Customs Act, 1962. He has referred to a judgment of the Hon'ble Supreme Court in the case of State of Bombay v. Supreme General Film Exchange Ltd. reported in AIR 1960 S,C. 980, wherein it was held that an impairment of the right of appeal by putting a new matter of procedure only, it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment. He has pleaded that even in the stay petition he has made this prayer that in the instant case no predeposit of penalty is required and his prayer for the grant of stay is an alternative prayer in para No. 4 of the stay petition dated the 10th August, 1984, He has .pleaded that this Court should pass necessary orders to the effect that there is no requirement of the predeposit of penalty in the instant case.
3. In reply Shri A.K. Sarkar, the learned S.D.R. has pleaded that in view of the provisions of Section 129E of the Customs Act, 1962 the predeposit of penalty is mandatory unless a stay is granted by this Court on account of undue hardship.
4 After hearing both the sides and going through the facts and circumstances'of the case we find that there is substance in the argument of the learned consultant. There was no provision as to the predeposit of penalty in the case of Revision applications filed under Section 131 of the Customs Act, 1962. Extract from the old Section 131 of the Customs Act, 1962 is reproduced as under :- "131. Revision by Central Government. -(1) The Central Government may, on the application of any person aggrieved by- (b) any order passed under Sec. 130 otherwise than on the application of any aggrieved person, or (c) any order passed on the application of any aggrieved person under Sec. 130 where the order is of the nature referred to in either of the proviso to Sub-section (1) of that section, annuul or modify such order.
(2) An application under Sub-section (1) shall be made within six months from the date of the communication to the applicant of the order against which the application is being made : Provided that the Central Government may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the aforesaid period of six months, allow it to be presented within a further period of six months." Section 129E of the Customs Act, 1962 came into force with effect from the 11th day of October, 1982. The applicant had filed the revision application on the 13th day of March, 1980. A simple perusal of old Section 131 shows that there was no provision as to the predeposit and if the applicant is desired to make the deposit at this stage it will tantamount to curtailment of the substantive right of the applicant. We very respectfully follow the judgment of the Hon'ble Sunreme Court in the case of State of Bombay v. Supreme General Film Exchange Ltd. reported in AIR 1960 S.C. 980, and hold that since there was no" requirement of predeposit of penalty under old Section 131 of the Act, in the instant case requirement of predeposit of penalty will tantamount to the curtailment of right of the applicant which existed at the time of filing of the revision implication before the Central Government. We would also like to refer a judgment of the Privy Council in the case of Delhi Cloth & General Mills Co Ltd v. CIT reported in 2 ITC 439/443 wherein it was held that "While provision's of a statute dealing merely with matters of procedure may properly,unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment of necessary intendment. Their Lordships can have no doubt that provisi is which if applied retrospectively would deprive of their existing finality orders which when the statute came into force, were final, are provisions which touch existing rights." Extract taken from Kanga and Palkhivala's THE LAW AND PRACTICE OF INCOME TAX, Seventh Edition, Vol. 1, page 7, (not cited by the parties). We would also like to refer the judgment in the case of Amin Stand Pyaralal v. Collector of Central Excise, Chandigarh, reported in 1984 (16) E LT. 126 wherein the larger bench of the Tribunal had gone in great length and had held that predeposit of penalty is attracted only in those cases where the appeal is filed on or after operated date viz.. the llth day of October, 1082 Accordingly, we hold that there is no requirement of predeposit of prnslty under Section 129E in the instant case.