The pre-deposit provision under section 35F of the Central Excise Act, 1944 and section 129E of the Customs Act, 1962 is an independent provision and it is required in selective cases and situations and not in all appeals which required to be filed under the provision of section 35B of the said Act.

K. J. Sengupta, J.:

The Court: The above appeal has assailed the judgment and order of the learned Trial Judge dated 23rd June, 2009 whereby and whereunder His Lordship disposed of a number of writ petitions as the core issue involved in all these writ petitions are identical and common, however, the problem were different. Naturally the reliefs in the writ petition were granted in different manner. The core issue involved in the matter is whether the learned Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as the Tribunal) is justified in dismissing the appeal preferred before it for noncompliance of orders passed by it, directing pre-deposit under section 35F of the Central Excise Act, 1944 (hereinafter referred to as the Act of 1944) and under section 129E of the Customs Act, 1962 (hereinafter referred to as the 1962 Act)

2. The Writ Petition No. 261 of 2008 (M/s. Premising Exports Limited & Anr. vs. Union of India &. Ors.), Writ Petition No. 2428 of 2008 (M/s. Shree Krishna Limited & Anr. vs. Union of India & Ors.) and Writ Petition No. 4006 of 2008 (Suresh Goyal & Sons vs. Union of India & Ors.) were filed to challenge the orders passed in appeals by the Appellate Tribunal directing pre-deposit under section 35 of the 1944 Act or under section 129(e) of the 1962 Act. All the said writ petitions were kept pending for hearing and during pendency of all these writ petitions, appeals were dismissed by the Appellate Tribunal for non compliance of the orders directing pre-deposit. The Writ Petition No. 220 of 2008 (M/s. Shaman Ispat Limited & Anr. vs. Union of India & Ors.) and Writ Petition No.1016 (Ms. Shree Gobinddeo Glass Works Ltd. & Anr. vs. Union of India & Ors.) were moved and further orders were passed by the Appellate Tribunal disposing the appeals for non-compliance of the orders directing pre-deposit.

3. The learned Trial Judge has recorded the submission of both the sides and after considering and interpreting the provision of both the Acts & Rules framed thereunder came to conclusion that on account of failure of pre-deposit the Tribunal could not dismiss the appeal. His Lordship also pleased to hold that it was not proper for the learned Tribunal to dismiss appeal when the writ petition was pending for adjudication.

4. In the context as above the matter was heard by this Court.

5. The learned Counsel appearing for the appellant, submits that orders of dismissal on account of failure to comply with the order of pre-deposit passed by the Tribunal are absolutely justified and the learned Trial Judge therefore, ought not to have interfered with the same.

6. He submits by citing two decisions of Supreme Court reported in 1981(8) ELT 679 (SC) and 1989(39) ELT 178 that it will appear that section 35 of the 1944 Act which is equivalent to section 129/129E of 1962 Act has been interpreted and categorically held that the right of appeal is not an absolute, rather conditional. If the condition is not satisfied the appeal shall be dismissed. In the Supreme Court cases factually the parties had failed to furnish the security to fulfil condition of preferring appeal, and it was held that the appeal was rightly dismissed. According to him the decisions of the Supreme Court still holds the field on the subject as the same is binding and Incorporation of section 35C (2A) no way affects the binding nature of the aforesaid two judgments. This new sub-section merely provides for a time frame for disposal of appeal preferred under section 35C and it makes it clear if the appeal is not disposed of within six months order of stay if passed would stand vacated. It is thus clear the said provision of sub-section (2A) cannot be said to have diluted the law laid down by the Hon'ble Supreme Court in the aforesaid two cases.

7. He submits that implied overruling of any decision cannot be inferred and furthermore the Supreme Court in the case reported in AIR 1963 SC 1561 has held that it is undoubtedly true that th