Honble CALLA, J.–Heard learned counsel for the parties.

(2). This appeal under Section 18 of the Rajasthan High Court Ordinance is directed against the order dated 24th Nov., 2001 whereby the writ petition filed by the appellant against the order of assessment in the matter of Sales Tax has been dismissed as not maintainable by the learned Single Judge on the ground that a statutory remedy of appeal was available to the petitioner. The parties are not at dispute that the remedy under Section 84 of the Rajasthan Sales Tax Act, 1994 is there so as to challenge the order passed by the Assessing Officer against the order of assessment.

(3). Learned counsel for the appellant submits that the remedy of the appeal as aforesaid is coupled with an onerous condition of depositing the amount as assessed by the Assessing Officer under the Sales Tax Act and, therefore, unless the due amount is deposited, the appeal cannot be entertained. It is also the case of the appellant that he is not in a position even to deposit the 10% of the amount and he submits that it was not at all the case in which the petition could be dismissed on the ground of alternative remedy of statutory appeal as described above. Learned counsel Sh. Mehta has placed reliance on a decision of the Supreme Court delivered in the case of H.K. Dada (India) Ltd. vs. State of Madhya Pradesh & Ores. (1), in which Section 22(1) of C.P. and Berar Sales Tax Act was considered, which provided for an appeal as under:-

``22(1) Any dealer aggrieved by an order under this Act may, in the prescribed manner, appeal to the prescribed authority against the order :

Provided that no appeal against an order of assessment, with or without penalty shall be admitted by the said authority unless such appeal is accompanied by a satisfactory proof of the payment of the tax, with penalty, if any, in respect of which the appeal has been preferred. The provisions of Section 22(1) of C.P. and Berar Sales Tax Act placed a substantial restriction on the assessees right of appeal in as much as the requirement was that the payment of the entire assessed amount has to be made as the condition prescedent to the admission of the appeal and, therefore, the question was as to whether the imposition of such a restriction effects the assessees right of appeal or not. The Supreme Court held it to be the settled position of law that the right of appeal was not a mere matter of procedure, but was a vested right, which is inherent in a party from the commencement of the action of the court of first instance and such right could not be taken away except by an express provision or by necessary implication. In yet another case of Customs Collector, Bombay vs. Shantilal & Co. (2). the Supreme Court held that remedy by way of an appeal against the order of confiscation and imposition of a large penalty under the Sea Customs Act is not an effective remedy because no appeal can be filed unless the large penalty imposed upon the petitioner has first been deposited. (4). Learned counsel Sh. Manoj Bhandari, on the other hand, has argued that in the facts of this case, such an onerous condition is not there because the remedy of appeal can be availed only by depositing 10% of the dues under the assessment order. According to him, the aforesaid decisions are of no help to the present appellant. He has also cited before us the judgment of the Supreme Court delivered in the case of Gujarat Agro Industries Co. Ltd. vs. Municipal Corporation of the City of Ahmedabad & Ors. (3), wherein it has been held that right to appeal being a statutory right and not an inherent right, it is for the legislature to decide whether to make the right subject to any condition or not. The remedies other than appeal are also available under the Act, i.e., Bombay Municipal Corporation Act, 1949. The Supreme Court held that the precondition of deposit under clause (e) and fixation of upper limit of 25% for exemption under the proviso were valid and not viol

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