The right of appeal is a substantive right, but the procedure for entertaining the appeal is a matter of procedure. The court interpreted the term 'entertain' to mean considering the appeal on its merits, and held that the amendment deleting the pre-deposit condition applied retrospectively.

JUDGMENT :

B.S. Chauhan, C.J. - This Writ Petition has been filed for a declaration that Section 17 of the Orissa Entry Tax (Amendment) Act, 2005 would not require the Petitioner to deposit any amount prior to entertaining of its appeal & the notice dated 2811.2006, issued by the Opposite Parties to deposit 50% of the disputed amount of tax be declared bad/illegal.

2. The facts & circumstances giving rise to this case are that Petitioner is a company incorporated under the Companies Act, 1956 & is having separate registration for entry tax at Balasore Bottling Plant, Jharsuguda Bottling Plant & also at Cuttack. Petitioner used to sell High Speed Diesel to South Eastern Railways in the course of inter state trade or commerce against Form-D for the period from December, 1999 to November, 2001. The movement of goods originated from Vishakha Terminal in Andhra Pradesh & culminated in the State of Orissa. Section 8 (1) of the CST Act provides that every dealer who in the course of inter state trade or commerce sells to the Government any goods would be taxed at a concessional rate & Section 8(4) of the CST Act provides that such dealer has to obtain a declaration duly filled in by an authorised officer of the Government. Petitioner had obtained declaration form from South Eastern. Railway. Marketing Division of the Petitioner's company having its place of business in Vishakhapatnam effected the sale of petroleum products- High Speed Diesel & lubricants from Vishakhapatnam to its customer South Eastern Railways of various destinations in the State of Orissa. Opposite Party No. 3 issued notices on 21st January, 2002 (Annex.-2 series) asking the Petitioner to show cause as to why it should not pay entry tax on the scheduled goods i.e. High Speed Diesel imported from outside the State of Orissa. Petitioner filed its reply to the said show cause on 5th February, 2002 (Annex.-3) explaining that sale of said goods was made in the course of inter state trade. Hence liability of payment of entry tax would be on South Eastern Railway i.e. the purchaser. Opposite Party No. 2 issued a circular dated 23rd December, 2002 (Annex.-4) expressing his opinion that entry tax can be imposed on the Union of India also. However, after having the proceedings u/s 7 (4) of the Orissa Entry Tax Act, 1999 (hereinafter called the 'Act') the assessment Order Dated 16th March, 2002 (Annex.-5 series) was passed levying entry tax on the Petitioner, holding that Petitioner was liable to entry tax amounting to Rs. 45,83,574, Rs. 1,51,41,280 & Rs. 1, 07,97,094 for the period December 1999 to March, 2000, April 2000 to March, 2001 & April 2001 to November, 2001 respectively on the scheduled goods. Being aggrieved, Petitioner preferred appeals u/s 16 of the Act along with applications for interim relief. Opposite Party No. 2 vide Order Dated 31st August, 2002 (Annex.-7 series) granted full stay of the demand raised. Thereafter, by separate Orders Dated 30th December, 2002 the Opposite Party No. 2 confirmed the orders of assessment dated 16th March, 2002 ex parte dismissing the appeal Being aggrieved, Petitioner preferred Second Appeals (Annex.-9 series) u/s 17 of the Act. Petitioner did not deposit any amount while filing the second appeals. The said appeals are pending. In the meanwhile, the Act has been amended deleting the condition for pre-deposit for entertaining the appeal. However, the notices have been issued to the Petitioner to make the deposit of the 50% of the total demand. Hence this petition.

3. Dr. Devi Pal, Learned Senior Counsel appearing for the Petitioner has submitted that there can be no bar to file/institute the appeal, however the pre-deposit condition is necessary to entertain the same. But 'entertain' means 'entertaining on merit', consideration by application of mind & not merely performing a ministerial act to accept the memorandum of appeal. Therefore, before the appeal could be entertained or take up for hearing on merit, as pre-deposit condit