1. The appellants are engaged in the manufacture of office machines, computers, etc. The Assistant Collector of Central Excise, Pune, passed an order on 15-2-84 on the price |list approving the same with certain modifications, As a result of the same, differential duty became payable by the appellants. Aggrieved from this order, the appellants filed an appeal to the Collector of Central Excise (Appeals), Bombay.
Before the said Collector, an application for the stay of the recovery of the disputed amount was also made. That application was dismissed by the impugned order dated 21-7-1984. Against this order, the present appeal has been preferred.
2. Shri Mahesh Kumar, the learned Senior Departmental Representative, appearing on behalf of the respondent, raised a preliminary objection that no appeal against the order of dismissal of the stay application was maintainable. In support of his contention, he relied on an order of this Tribunal bearing No. 371/84-D passed on 2-7-84 in Appeal No.ED(SB)(T) 750/84-D (Bhushan Industrial Co. (P) Ltd. v. Collector of Central Excise, Chandigarh). The learned counsel for the appellants sought time to answer this objection and also to produce case law on the point.
3. After availing of the time granted, Shri Rana, the learned counsel for the appellants, has cited AIR 1969 SC 430 (Income Tax Officer, Cannanore, Appellant v. M.K. Mohammed Kunhi, Respondent) and has asked for exercising incidental or ancillary powers vested in this Tribunal.
The vital point that emerges is : whether such powers vest in the Tribunal in the circumstances of the present case In the authority, cited by Shri Rana, the appellant had made an application to the Income Tax Appellate Tribunal to stay the recovery of the realisation of the penalty imposed by the depart- mental authorities during the pendency of appeal before it. Unlike the present case, the appeal was actually pending before the Appellate Tribunal where the application for the grant of stay was made. In the instant case, the appeal is still pending before the lower forum i.e. the Collector (Appeals). The following extract from para 2 of the above Supreme Court judgment briefly gives the facts and ratio of the decision :- "The assessee preferred appeals to the Income Tax Appellate Tribunal and made an interim prayer for stay of collection of the penalties imposed. The Tribunal declined to order any stay holding that it had no power to grant such a prayer. The assessee then moved the High Court under Article 226 of the Constitution. The High Court held that the Tribunal had the power to stay the proceedings as also the collection of the penalties pending the appeal since that power was incidental and ancillary to its appellate jurisdiction.' 4. It is admitted by both the sides that the Central Excises and Salt Act, 1944 does not have any provision to stay the recovery of the disputed amounts. The incidental or ancillary powers to stay such recoveries can be exercised by this Appellate Tribunal or by the Collector (Appeals), provided the main appeal is pending before any of these authorities. As already pointed out, the main appeal in this case is admittedly pending before the Collector (Appeals), Bombay and not before this Tribunal.
5. It is also argued by Shri Rana that the order of the Collector (Appeals), which has been challenged, was one passed under Section 35A of the Act and, therefore, the appeal is allowable. We do not find this to be the correct contention. A plain reading of this section shows that definite results flow from an order under Section 35A. It may confirm or modify or annul the decisions or orders appealed against or the case may be referred back to the adjudicating authority with such directions as the Collector (Appeals) may think fit for fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. Indubitably, this provision relates to final orders or decisions and not to interlocutory orders, 6.. The language of this section is very clear and unambiguous. The meaning and intention of the statute has to be collected from the plain expression used therein and not by speculating upon the intention of the legislature. If in these fiscal matters, the legislature, in its wisdom, has not provided any appeal against an interlocutory order, this Tribunal cannot enlarge the scope of the existing provisions in the name of equity, justice and good conscience. It is settled law that statutory provisions cannot be controlled or whittled down by applying these general principles. Thus Section 35A read with Section 35B cannot bring into their fold decisions which are in the nature of interim orders.
7. It will also be relevant at this stage to make a reference to Section 35F of the Act. This provision envisages that an appeal can only be heard by Collector (Appeals) or by this Tribunal, if the disputed amount is deposited before the hearing of the same. What we observe is that there is no impediment in filing the appeal, but there is a bar to its hearing unless the condition precedent of pre-deposit is fulfilled. Pre-deposit is a general rule but an exception is recited in the proviso of this Section where undue hardship occurs to aggrieved party. In the event of such hardship, the pre- deposit can be dispensed with. There is, however, a rider that while exercising this discretion, the interests of the Revenue be safeguarded. In the present case it appears that the appellants had not moved any application before the Collector (Appeals) to dispense with the pre-deposit, but had only asked for the stay of the recovery of the disputed amount. The prayer for stay was declined by the said Collector. Thus, in the circumstances of this case, the condition of pre-deposit enjoined by Section 35F still subsists and operates. Obviously, if the disputed amount is not deposited, the appeal will have to be rejected without going into its merits. If an order of rejection is passed, it will be the final disposal of the appeal. In such a situation, the aggrieved party, if so advised, can challenge that order before this Tribunal on all permissible grounds. That is not the case in the present proceedings.
8. The present is an appeal against the order of refusal for stay of the recovery of the disputed amount. The objection raised is about the maintainability of the appeal. As already pointed out, Shri Rana, the learned counsel for the appellants, has submitted that the Tribunal should exercise its incidental or ancillary powers in granting the relief sought, as the ends of justice so warrant. While considering this contention, we have also looked into the scheme of the Act. We observe that Section 35F makes it obligatory to deposit the disputed amount before an appeal can be heard, but in case of undue hardship, the proviso says that the pre-deposit can be dispensed with. We have already noted that the appellants had not exercised their right to seek this relief provided by the statute. On the other hand, there appears to be a deliberate attempt to circumvent Section 35F by moving an application for the stay of the recovery of the amount on the plea of invoking incidental or ancillary powers, thus evolving a contrivance to render the provisions of Section 35F, both nugatory and redundant. This cannot be the intention of the Act.
9. On going through the case law (which unfortunately the parties failed to refer) we find that the present matter in controversy has already been set at rest by the Supreme Court in its various decisions.
In this connection we cite AIR 1974 Supreme Court 1126 (Smt. Ganga Bai v. Vijay Kumar and Ors.), "There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute, one may, at one's peril, bring a suit of one's choice. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit, But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute." We have also come across a decision of the Bombay High Court reported as AIR 1954 Bombay 78 (Prem Narayan Amritlal Verma v. Divisional Traffic Manager)t wherein a similar view had been taken. The relevant portion is as under :- "An appeal is always the creature of statute and the right of appeal is limited by the law which gives that right. An appellate Court cannot exercise wider powers of correcting the lower Court than are strictly conferred upon it by the law which creates the appellate Court." 10. We respectfully follow these decisions and hold that the preliminary objection raised by the Departmental Representative must prevail.
11. The learned counsel for the appellants has attempted to point out some infirmities in the order of the Collector (Appeals). As we cannot hear the appeal, we refrain from going into the validity or otherwise of the order.
12. For the foregoing reasons, we dismiss this appeal as not maintainable.