Jaganmohan Reddy, C.J.
1. This matter was referred to a Full Bench by Chan-dra Reddy, C. J., and Gopalrao Ekbote, J., for reconsideration of the decision in Sita-ramaiah v. Collector of Central Excise, Hyderabad, ILR (1963) Andh Pra 42 delivered by a Bench of this Court, in view of the two decisions of their Lordships of the Supreme Court in State of Bombay v. Supreme General Films Exchange Ltd. : 3SCR640 and Prem Chand v. Excise Commr. U. P., : AIR1963SC996 . In ILR (1963) Andh Pra 42 it was held that Rule 215 of the Rules made under the Central Excises and Salt Act, 1944, making among other sections Section 189 of the Sea Customs Act applicable to any decision or order relating to any duty or penalty leviable in respect of any goods under the Act or the Rules framed thereunder, was a procedural rule and did not affect the right of appeal conferred under section 35 of the Central Excises and Salt Act, 1944, inasmuch as what section 189 of the Sea Customs Act provides was to regulate a matter relating to procedure after the filing of the appeal.
Section 189 of Sea Customs Act is as follows:
'Where the decision or order appealed against relates to any duty or penalty leviable in respect of any goods, the owner of such goods, if desirous of appealing against such decision or order, shall, pending the appeal, deposit in the hands of the Customs-Collector at the port where the dispute arises the amount demanded by the Officer passing such decision or order.
When delivery of such goods to the owner thereof is withheld merely by reason of such amount not being paid, the Customs-collector shall, upon such deposit being made, cause such goods to be delivered to such owner
If upon any such appeal it is decided that the whole or any portion of such amount was not leviable in respect of such goods, the Customs-collector shall return such amount or portion (as the case may be) to the owner of such goods on demand by such owner.'
This section subsequently was made applicable to the Central Excises and Salt Act by Notification No. 69/59 dated 18-7-59 made under Section 12 of the Central Excises and Salt Act which authorises the Central Government by a notification in the Official Gazette to declare that any of the provisions of the Sea Customs Act, 1878, relating to the levy of and exemption from customs duties, drawback of duty, warehousing, offences and penalties, confiscation, and procedure relating to offences and appeals, with such modifications and alterations as it may consider necessary or desirable in adapt them to the circumstances.
2.Mr. Chowdary's contention before us was that since Section 12 only authorises the provisions of the Sea Customs Act in respect of procedure relating to appeals, the application of section 189 of that Act by a notification issued under section 12 fetters the right of appeal which is a substantive right; as such, it is ultra vires the powers conferred by section 12 of the Act. It appears to us that the contention urged by Mr. Chowdary with some considerable industry does not arise because a reading of section 189 of the Sea Customs Act would show that that provision would not in any view of its construction even in the remotest is designed to fetter the right of appeal conferred under section 35 of the Central Excises and Salt Act. 1944. What section 189 is designed for is that where a duty or penalty is payable on goods and he goods are in the custody of the Cus-toms Officials, if the owner of the goods intends to appeal, he may get the goods, lending the appeal, on payment of the customs duty levied on them If he does not pay the amount, he cannot obtain the goods. On the other hand, if he pays the amount and obtain release of the goods, the payment will be subject to the result of the appeal. It will be observed that there is no power either under section 189 of the Sea Customs Act or in the application of the provisions of the said Act under Section 12 of the Central Excises and Salt Act, 1944, to dismiss an appeal if the tax is not paid. It appears to us that the notice bearing C. N. Va/2/154/62 (1) dated 29-6-62. which has been given to the petitioner, in so far as it threatens to dismiss the petitioner's appeal if he fails to pay the dues for non-compliance with the provisions of Section 189 of the Sea Customs Act read with the Government of India Ministry of Finance (Department of Revenue) Notification No 69/ 50 dated 18-7-59 issued under section 12 of the Central Excises and Salt Act 1944, is ultra vires the powers conferred by section 189 of the Act and must therefore, to that extent be quashed The Collector is, therefore, directed to hear the appeal and dispose of the same in accordance with law even if the amount is not deposited.
3. The Writ Petition is accordingly allowed but without costs.