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4. On behalf of the Revenue Shri H.L. Taneja has fervently argued that we should abjure from going into the merits of the case; that as against the Demand of Rs. 4,13,19,815/- under the DST Act the Petitioner is now required to deposit Rs. 2 crores only, which is most reasonable. Reliance has been placed by Mr. Taneja on State of Punjab v. Punjab Fibres Ltd. [2005] 139 STC 200 where it has been observed that if the language is clear and unambiguous Courts ought not to grant relief solely on sympathetic considerations. This decision, however, militates against the Revenue for the reasons that there is a distinction, difference and divergence between the provisions of the Sales Tax Act and Delhi Value Added Tax Act, 2004 (for the sake of brevity 'DVAT Act') on the one hand, and the Customs and Excise Acts on the other. In the latter financial hardship is a consideration, whereas in the former the only pre-condition is the deposit of amounts in dispute, by the Appellant. Mr. Taneja has thereafter drawn our attention to Novopan India Ltd., Hyderabad v. Collector of Central Excise and Customs 1994 Supp(3) SCC 606 which, in our opinion, has not been properly understood. The general rule is that while interpreting fiscal statutes benefit of doubt or ambiguity must be given to the assessed. In Novopan the Court had encountered an exception or exemption provision and it is in this context that it had been enunciated that the advantage of ambiguity or doubt must go to the State. In other words, any exception to the general rule would be available only if it is clearly and unequivocally in favor of the assessed. In order to counter the argument Mr. Taneja has also made a futile effort to garner support from Balvant N. Viswamitra v. Yadav Sadashiv Mule (Dead) through LRs . However, in that case it was found that the decree which was at the fulcrum of the dispute could not be described as a nullity by any stretch of the imagination. In order to arrive at such a conclusion the Court must perforce weigh every facet of the merits of the case and it is this very exercise that Mr. Taneja would like us to avoid.

8. It would be improper for us to ignore the fact that the Legislature has considered it appropriate to make a departure from the system established under the Customs and Excise and Municipal statutes, all of which require that the amount assessed as tax must be deposited as a pre-condition for the consideration and hearing of an appeal. So far as the Sales Tax or the Page 0765 DVAT statutes are concerned an appellant must deposit the amount of tax which is not disputed by the dealer/appellant. The Appellate Authority may thereafter reduce or waive the amounts in controversy and may at best require the furnishing of a security by the applicant/dealer.

11. In Vijay Prakash D. Mehta v. Collector of Customs (Preventive), Bombay Section 129E of the Customs Act was in consideration. The Apex Court observed that the right to appeal is neither an absolute right nor an ingredient of natural justice and these principles must be followed in all judicial and quasi-judicial adjudications. Since all relevant factors had been kept in perspective by the Tribunal, the Apex Court found no merit in the appeal before it.

12. Mr. Lakshmi Kumaran has contended that the existence of a prima facie case is so evident in the Petitioner's favor as to render all other considerations superfluous. This argument is predicated on Rule 11 of the DST Rules, 1975 which prescribes that in calculating its taxable turnover, a registered dealer may deduct from his turnover sales made to any undertaking supplying electrical energy to the public in Delhi under a license or sanction granted or deemed to have been granted under the Indian Electricity Act, 1910 all goods for use in Delhi by it directly in the generation or distribution of electrical energy in Delhi. He has drawn assistance from the decision in Suresh Jindal v. BSES Rajdhani Power Ltd. in LPA No. 256/2006 decided on 20.2.2006. The Division Bench presided over by Chief Justice Markandeya Katju, as his Lordship then was, had ruled that since the respondent had applied for a license under Rule 10(2) of the Delhi Electricity Reforms (Transfer Scheme) Rules 2001 within sixty days of 1.7.2002, it was clothed with all the powers of a licensee under the Indian Electricity Act, 1910. It is Mr. Lakshmi Kumaran's contention that this observation has palpably escaped the attention of the Commissioner. On the other hand Mr. Taneja has retorted by submitting that the factual matrix in that case was altogether different to the present case. In our view this argument of Mr. Lakshmi Kumaran is not so irresistible as would brook no further consideration. It touches upon the merits of the case. It is not one which must be accepted no sooner it is stated. This question will, no doubt, be considered at the time when the Appeal is heard for final disposal. This, however, can happen only if orders of pre-deposit are complied with. It is in these circumstances that we do not consider it appropriate, at this stage of the proceedings, to go into the intricate question of of which of the statutes, i.e., DST Act or DVAT Act apply. The Order in Original was passed on 31.3.2005 and the Appeal/Objections were filed in May, 2005 after the coming into force of the DVAT Act on 1.4.2005.

13. Section 43(5) of the DST Act prescribes that no appeal against an Assessment Order shall be entertained by the Appellate Authority unless such appeal is accompanied by satisfactory proof of the payment of the tax or penalty, provided that such Appellate Authority may entertain the Appeal without such payment on the appellant providing a security for such payment or for any lesser amount. The appellant must, however, pay the amount of admitted tax. The DST Act stands repealed by virtue of Section 106 of the DVAT Act with effect from 1.4.2005. In the present regime, as established by the DVAT Act, 'Objections' under Section 74(1) can be filed by a person who is dissatisfied with an assessment made under the Act, provided that Page 0768 such action cannot be entertained unless the amount of tax, interest of penalty assessed that is not in dispute has been paid, failing which the 'Objections' shall be deemed to have not been filed (The language is lifted from the statute). The discretion to waive pre-deposit amount of tax, interest or penalty that is not in dispute has not been reposed in the Commissioner. This will be evident on a reading of Section 76 of the DVAT Act which governs the functioning of the Appellate Tribunal. Section 76(1)(4) prescribes that no appeal against an assessment shall be entertained by the Appellate Tribunal unless the appeal is accompanied by satisfactory proof of the payment of the amount in dispute and any other amount assessed as due from the person; provided that the Appellate Tribunal may, if it thinks fit, entertain an appeal without payment of some or all of the amount in dispute, on the appellant furnishing in the prescribed manner security for such amount as it may direct; provided further that no appeal shall be entertained by the Appellate Tribunal unless it is satisfied that such amount as the appellant admits to be due from him has been paid. This creates an anomalous position in that at the second tier of appeal, i.e., before the Appellate Tribunal, whilst the amount admitted to be due by the appellant must be deposited, [similar to the 'Objections' stage] the Appellate Tribunal may waive 'the amount in dispute'. The repeated use of the word 'dispute' in both situations is confusing and ought to have been avoided by the Legislature. However, it can have no meaning other than the total or entire amount found payable by the dealer who had filed 'Objections' under Section 74(1) of the DVAT Act.