Holding

The phrase 'unable to pay' in the proviso to sub‑section (5) of Section 39 of the Haryana General Sales Tax Act, 1973, refers solely to the assessee’s paying capacity/financial position and cannot be expanded to cover other considerations.

Summary

The State of Haryana appealed against the Haryana Sales Tax Tribunal’s order directing Maruti Udyog Ltd. to deposit the full tax, interest and penalty before its appeal could be entertained. Maruti argued that the proviso to sub‑section (5) of Section 39 of the Haryana General Sales Tax Act, 1973, allowed an appeal without prior payment if the company was "unable to pay" the whole amount, contending that its inability stemmed from not having collected the additional tax from customers. The Supreme Court examined the statutory language and held that "unable to pay" refers only to the assessee’s actual financial capacity to make the payment, not to any alleged illegality of the assessment or non‑collection from customers. Consequently, the Court found that the Tribunal was correct in insisting on deposit before entertaining the appeal and that the High Court erred in setting aside the Tribunal’s order. The State’s appeal was therefore allowed, and the High Court’s judgment was set aside.

Issues considered

Whether the phrase 'unable to pay the whole amount of tax assessed' in the proviso to sub‑section (5) of Section 39 of the Haryana General Sales Tax Act, 1973, is limited to the assessee’s financial capacity or can include other factors such as non‑collection of tax from customers.
Whether an appellate authority may entertain an appeal without prior payment of tax and interest on the basis of the assessee’s alleged inability to pay.
Whether the High Court was justified in quashing the Tribunal’s order directing the deposit of the amount before the appeal could be heard.

Legislation cited

Central Sales Tax Act, 1956
Haryana General Sales Tax Act, 1973s. Section 39

Subjects

Sales TaxSection 39Unable to payStatutory appealDeposit requirementBank guaranteeFinancial capacityInterpretation of statute

Judgment

STATE OF HARYANA A
v.
MIS MARUTI UDYOG LTD. AND ORS.

SEPTEMBER 7, 2000

[K.T. THOMAS AND R.P. SETHI, JJ.] B

Sales Tax :

Haryana General Sales Tax Act, 1973-Section 39; Sub-section (5);
proviso--"Unable to pay the whole of the amount"-Ambit and scope of- C
Held, inability to pay refers to paying capacity of person concerned and not
his legal or actual liability to pay the amount demanded

Respondent-company is a registered dealer under Haryana General
Sales Tax Act, 1973 and Central Sales tax Act, 1956. Sales Tax D
Commissioner, after serving a notice on the company, suo motu revised
assessments done under both the Acts, enhancing gross turnover of the
company by adding excise duty to the turnover disclosed in returns filed and
disallowing part of the amount of rebate allowed by the assessing authority.
The company filed an appeal before the Tribunal together with an application
for entertainment of the appeal without prior payment of tax and interest as E
required under sub-section (5) of section 39. On rejection of the said
application, the company filed a Writ Petition in High Court, which disposed
of the petition directing the company to furnish bank guarantee for the
additional demand. The Tribunal disposed of the appeal by remanding the case
back to the Commissioner for fresh decision after giving the company a F
reasonable opportunity of being heard. The Commissioner revised the orders
and raised additional demands. The company again filed an appeal before the
Tribunal together with a similar application filed before. The application was
again rejected and the company again filed a Writ Petition before the High
Court. The High Court quashed the order of the Tribunal and directed it to
pass a speaking order after hearing the company in accordance with law. The G
Tribunal rejected the application relying upon a Full Bench decision of the
High Court and directed the company to deposit the amount within a certain
period. The company again filed a Writ Petition before the High Court, which
was allowed in favour of the company. Hence this appeal by the State before
this Court.
185 H
186 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A The company contended that ambit and scope of the words "unable to
pay the whole amount of tax assessed" used in proviso to sub-section (5) of
section 39 of the Sales Tax Act is of wide amplitude which refers both to the
financial position of the assessee and to the inability to pay the tax on account
of non-collection from the customers. The company, at the time of arguments,
B made an alternative plea that in case this Court is not inclined to uphold the
judgment of the High Court, a relief may be granted for dispensing deposit of
interest portion on the amount of Central Sales Tax assessed by the order
challenged in statutory appeal.

Disposing the appeal, the Court
c
HELD: 1.1. A right of appeal is the creature of the statute and has to be
exercised within the limits and according to the procedure provided by law. It
is filed for invoking the powers of a superior court to redress the error of
courts below, if any. No right of appeal can be conferred except by express
words. An appeal, for its maintainability, must have a clear authority of law.
D Sub-section (5) of section 39 of the Haryana General Sales Tax Act, 1973
vests a discretion in the appellate authority to entertain an appeal if it is filed
within sixty days and the amount of tax assessed along with penalty and
interest, if any, recoverable from the persons has been paid. The aforesaid
restriction is subject to the proviso conferring discretion upon the appellate
E authority to dispense with the deposit of the amount only on proof of the fact
that the appellant was unable to pay the amount. Before deciding the appeal,
the appellate authority affords an opportunity to the party concerned to either
pay the amount or make out a case for the stay in terms of proviso to sub-
section (5) of section 39 of the Act. Once the conditions specified are complied
with, the appeal is born for being disposed of on merits after hearing both the
F sides. Thus sub-section (5) regulates the exercise of right of appeal conferred
upon the assessee under section 39 of the Act, the object being to keep in
balance the right of the aggrieved persons and the right of the State to speedy
recovery of tax. {193-A-C]

G 1.2. The inability mentioned in the proviso to sub-section (5) of section
39 refers to the paying capacity and financial position of the company and its
scope cannot be widened. The word "pay" with its grammatical variation and
cognate expressions, when used with reference to the tax amount, means
"deliver and render" the amount, it indicates the discharge of an obligation
rather than an investment of money. "To pay" is a generic term and the rest
H of the proviso refers to the modes of payment It may mean the payment of the
STATE v. MARUTI UDYOG LTD. 187

amount of tax assessed. The dictionary meaning of the "payment" is the A
performance of an obligation for the delivery of money. In legal contemplation
"payment" is the discharge of an obligation by the delivery of money or its
equivalent. The word "unable" used in the proviso has been defined to mean
'not having sufficient strength, power and means'. In relation to money, it
means insufficiency of funds. It follows that the inability to pay the amount is B
referable to the paying capacity of the person concerned and not his legal or
actual liability to pay the amount demanded. The payment made under the
proviso only enables the appellate court to entertain the appeal for adjudication
and does not decide the rights of the parties. [194-C-F]

1.3. The Act has been enacted and the right of appeal provided with a C
dual purpose of protecting the interests of the assessee and also to safeguard
the interests of the Revenue. The provision appears to have been made to
explore further sources for raising revenue of the State. In the instant case,
the company nowhere mentioned to or referred its inability to pay the amount.
on account of its alleged financial difficulties or incapacity.. to make the
requisite payment The legality of the additional demand created could not be D
made the basis for insisting to entertain the appeal without prior payment as
that would have required the determination on the merits of the appeal. Relying
upon the Full Bench judgement of the jurisdictional court, the Tribunal was
competent in passing the order which was impugned in the High Court. The
Division Bench of the High Court was not justified in ignoring the Full Bench E
judgement and the judgement of another Bench of coordinate jurisdiction while
allowing the writ petition of the company. The Division Bench even failed to
mention the circumstances, which justified the passing of the order· for
allowing the writ petition with direction to the Tribunal for disposal of the
appeal on furnishing of the bank guarantee by the company. Merely because
the Tribunal had insisted upon the payment of the amount in terms of proviso F
to sub-section (5) of section 39 of the Act, should not have annoyed the court
while granting the relief in exercise of its .powers under Article 226 of the
Constitution. The impugned order being contrary to settled principles of law
cannot be sustained and is accordingly set aside. (195-B-E)

1.4. Since the alternative plea of dispensing with the deposit of interest
G
atleast on the amount of Central Sales Tax assessed was not made before the
appellate Tribunal, such a plea cannot be considered now. However, the company
is permitted to make such a plea before the appellate Tribunal after depositing
the entire balance amount. If any such plea is made within 15 days after
depositing the entire balance amount, the appellate Tribunal shall take a H
188 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A decision thereon before considering the statutory appeal on merits. (195-F-G]
Assistant Collector of Central Excise, Chandan Nagar, West Bengal v.
Dunlop India Ltd. & Ors., (1985) 1 SCC 260, relied on.

Mis Emerald International Ltd. Ludhiana v. State ofPunjab & Ors., (STI
B (1997) P & H High Court" 113 F.B.J and Lakshmiratan Engineering Wo_rks
Ltd. v. Asstt. Commissioner (Judicial) I, Sales Tax, Kanpur Range, Kanpur &
Anr., AIR (1968) SC 488, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4938 of2000.

C From the Judgment and Order dated 4.12.98 of the Punjab and Haryana
High Court in C.W.P. No. 6932of1998.

K.T.S. Tulsi, Mahabir Singh and S.P. Singh Chowhan for the Appellant.

R.F. Nariman, Pratapvem1gopal, P.S. Sudheer, Surekha Raman and K.J.
D John for the Respondents.

The Judgment of the Court was delivered by

SETHI, J. Leave granted.

E What is the ambit and scope of the words "unable to pay the whole
of the amount of tax assessed" used in proviso to Sub-section (5) of Section
39 of the Haryana General Sales Tax Act, 1973, is the question oflaw requiring
our interpretation in this appeal by special leave. It is contended on behalf
of the appellant that the inability mentioned in the proviso refers to the
financial position of the assessee, whereas the respondents contend that the
F words "unable" used in the Section is of wider amplitude being not restricted
to only financial position of the assessee.

In order to determine the rival contention it is necessary to have a
resume of the facts leading to the filing of the present appeal. The respondent,
G M/s.Maruti Udyog Limited a public limited company (hereinafter referred to
as "the Company"), having its factory at Gurgaon in the State of Haryana is
engaged in the business of manufacture and sale of various types of cars,
namely, Maruti 800, Omni and Esteem, etc. along with their spare parts. The
Company is a registered dealer under the Haryana General Sales Tax Act, 1973
(hereinafter referred to as the "Act") and the Central Sales Tax Act, 1956
H (hereinafter referred to as the "Central Act") with the Excise & Taxation
I
•.
STATE v. MARUTI UDYOG LTD. [SETHI, J.] 189
Officer, Gurgaon. For the Assessment Year 1986-87, the Company was assessed A
to tax by the Excise & Taxation Officer, Gurgaon vide his orders dated 20th
November, 1990 under the Act and the Central Act. On 16th March, 1992, the
Deputy Excise & Taxation Commissioner (I), Gurgaon served a notice on the
Company proposing to.suo motu revise the assessment orders of the Excise
& Taxation Officer, Gurgaon dated 20th November, 1990 on the grounds that
the orders were illegal and improper for the reasons specified in the notice B
served. Subsequently, the suo motu revised assessment orders were passed
enhancing the gross turnover of the Company by adding excise duty in the
turnover returned by it and assessed by the Excise & Taxation Officer, Gurgaon
disallowing part of the amount of rebate allowed by the Assessing Authority.
The turnover of Omni product was taxed at the rate of I 0% instead of 6% C
treating the same as "Vans". _Aggrieved by the aforesaid order, the Company
filed an appeal before the Haryana Sales Tax Tribunal (hereinafter referred to
as the "Tribunal"), challenging the enhancement of turnover along with an
application for stay of recovery of demand and entertainment of appeal
without prior payment of tax and interest as required under Sub-section (5)
of Section 39. The application was rejected on 29th June, 1992 and the D
Company given time to deposit the entire amount within a period of one
month.

- Feeling aggrieved, the Company filed writ petition No. 10088of1992 in
the High Court of Punjab and Haryana at Chandigarh which was disposed of
on 7 .8.1992 directing the Company to furnish bank guarantee for the additional
E

demand for entertainment of appeal, instead of depositing the whole amount
in terms of Sub-section (5) of Section 39 of the Act. The appeal filed by the
Company was disposed of by the Tribunal by remanding the case to Deputy
Excise and Taxation Commissioner for fresh decision after giving the Company
a reasonable opportunity of being heard. The Deputy Excise and Taxation F
Commissioner vide its order dated 29th March, 1994 again revised the orders
and created additional demand of Rs. 23, 10,995 under the Act and Rs.78,44,607
under the Central Act.

Feeling aggrieved, the Company again filed an appeal before the Tribunal G
along with application for stay of recovery of demand and entertainment of
appeal without prior demand of tax and interest. Such application was rejected
on 7.9.1994 giving the Company time to deposit the entire demand by 30th
November, 1994. The Company again filed writ petition No. 16537of1994 in
the High Court against the order of the Tribunal rejecting its application. On
5.12.1994, the High Court quashed the order of the Tribunal and directed it H
190 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A to pass a speaking order after hearing the Company in accordance with law.
The Tribunal vide its order dated 20th February, 1998 rejected the application
of the Company relying upon a Full Bench Judgment of Punjab & Haryana
High Court in Mis. Emerald International Ltd, Ludhiana v. State of Punjab
& Ors., [STI (1997) Pb. & Hn. High Court 113] and directed the Company to
deposit the amount within a period of one month. Not satisfied, the Company
B again filed writ petition No. 6932 of I 998 in the High Court which was allowed
on 4.12. I 998 vide the judgment impugned i? this appeal.

Before appreciating the legal position, it is necessary to refer to the
averment made by the Company in its application seeking stay of recovery
C of demand and entertainment of appeal without prior payment of tax and
interest. The only ground taken in that application was:
"That the petitioner has not collected any additional tax from the
customers and is unable to deposit the amount of additional demand
created by patently illegal orders."
D Section 39 of the Act confers a right of appeal upon the assessee
against any original order including an order under Section 40 passed under
the Act and the Rules made thereunder. Sub-section (5) thereof provides:
"No appeal shall be entertained unless it is filed within sixty days from
the date of the order appealed against and the appellate authority is
E satisfied, that the amount of tax assessed and the penalty and interest,
if ~y, recoverable from the persons has been paid.
Provided that the said authority, if satisfied that the person is unable
to pay the whole of the amount of tax assessed, or the penalty
imposed, or the interest due, he may, ifthe amount of tax and interest
F admitted by the appellant to be due has been paid, for reasons to be
recorded in writing, entertain the appeal and may stay the recovery
of the balance amount subject to the furnishing of a bank guarantee
or adequate security in the prescribed manner to the satisfaction of
the appellate authority.
Provided further that in the case of an appeal against any order which
G
has to be communicated by the appropriate authority to the appellant,
the period of sixty days shall commence from the date of receipt of
the copy of the order by the appellant and in the case of an appeal
against any other order made under this Act, the time spent in obtaining
the certified copy of the order shall be excluded in computing the
H period of sixty days."
STATE v. MARUTI UDY9G LTD. [SETHI, J.] 191

. There cannot be any dispute that right of appeal is the creature of the A
statute and has to be exercised within the limits and according to the procedure
provided by law. It is filed for invoking the powers of a superior court to
redress the error of court below, if any. No right of appeal can be conferred
except by express words. An appeal, for its maintainability, must have a clear
authority of law. Sub-section (5) of Section 39 of the Act vests a discretion
in the appellate authority to entertain the appeal if it is filed within sixty days
B
and the amount of tax assessed along with penalty and interest, if any,
recoverable from the persons has been paid. The aforesaid restriction is
subject to the proviso conferring discretion upon the appellate authority to
dispense with the deposit of the amount only on proof of the fact that the
appellant was unable to pay the amount. Before deciding the appeal, the c
appellate authority affords an opportunity to the party concerned to either
pay the amount or make out a case for the stay in terms of proviso to Sub-
Section (5) of Section 39 of the Act. Once the conditions specified under sub-
section (5) of Section 39 are complied with, the appeal is born for being
disposed of on merits after hearing both the sides.
D
Interpreting the word "entertain" in relation to the filing of an appeal,
as is also the mandate of Sub-Section (5) of Section 39 of the Act this Court

-
in Lakshmiratan Engineering Works Ltd. v. Asstt. Commissioner, (Judicial)
/, Sales Tax, Kanpur Range, Kanpur and another, AIR (1968) SC 488 observed:
E
"To begin with it must be noticed that the proviso merely requires that
the appeal shall not be entertained unless it is accompanied by
satisfactory proof of the payment of the amount of tax admitted by
the appellant to be due. A question thus arises what is the meaning
of the word 'entertained' in the context? Does it mean that no appeal
shall be received or filed or does it mean that n~ appeal shall be F
admitted or heard and disposed of unless satisfactory proof is available?
The dictionary meaning of the word 'entertain' was brought to our
notice by the parties, and both sides agreed that it means either to
deal with or admit to consideration. We are also of the same opinion.
The question, therefore, is at what stage can the appeal be said to be
G

-
entertained for the purpose of the application of the proviso? Is it
'entertained' when it is filed or is it 'entertained' when it is admitted
and the date is fixed for hearing or is it finally 'entertained' when it
is heard and disposed of ? Numerous cases exist in the law reports
in which the word entertained or similar cognate expressions have
/ been interpreted by the courts. Some of them from the Allahabad High H
192 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A Court itself have been brought to our notice and we shall deal with
them in due course. For the present, we must say that ifthe legislature
intended that the word 'file' or 'receive' was to be used, there was
no difficulty in using those words. In some of the statutes which were
brought to our notice such .... under Order 41 Rule l of the Code of
Civil Procedure it is stated that a memorandum shall not be filed or
B presented unless it is accompanied etc. in S.17 of the Small Causes
Courts Act, the expression is 'at the time of presenting the application'.
In Section 6 of the Court Fees Act, the words are 'File' or 'shall be
received'. It would appear from this that the legislature was not at a
loss for words if it had wanted to express itself in such forceful
c manner as is now suggested by counsel for the State. It has used the
word 'entertain' and it must be accepted that it has used it advisedly.
The word has come in for examination in some of the cases of the
Allahabad High Court and we shall now refer to them .....

In our opinion these cases have taken a correct view of the word
D 'entertain' which according to dictionary also means 'admit to
consideration'. It would, therefore, appear that the direction to the
Court in the proviso to S.9 is that the Court shall not proceed to admit
to consideration an appeal which is not accompanied by satisfactory
proof of the payment of the admitted tax. This will be when the case
is taken up by the Court for the first time. In the decision on which
E
the Assistant Commissioner relied, the learned Chief Justice (Desai
C.J.) holds that the words "accompanied by" showed that something
tangible had to accompany the memorandum of appeal. If the
memorandum of appeal had to be accompanied by satisfactory proof,
it had to be in the shape of something tangible, because no tangible
F thing can accompany a document like the memorandum of appeal. In
our opinion, making 'an appeal' the equivalent to the memorandum of
appeal is not sound. Even under Order 41 of the Code of Civil Procedure
the expressions "appeal" and "memorandum of appeal" are used to
denote two instinct things. In Wharton's Law Lexicon, the word
'appeal' is defined as 'the judicial examination of the decision by a
G higher court of the decision of an inferior court. The appeal is the
judicial examination; the memorandum of appeal contains the grounds
on which the judicial examination is invited. For purposes of limitation
and for purposes of the rules of the Court it is required that a written
memorandum of appeal shall be filed. When the proviso speaks of the
H entertainment of appeal, it means that the appeal such as was filed will
STATEv. MARUTIUDYOGLTD. [SETHI, J.] 193
not be admitted to consideration unless there is satisfactory proof A
available of the making of the deposit of admitted tax."

The object of Sub-section (5) of Section 39 of the Act is to ensure the
deposit of amount claimed from an assessee in case of an appeal filed against
the tax demanded. However, power is given to the Appellate Tribunal to
relieve him from the rigor of above restriction under the circumstances spelt B
out in the proviso of the aforesaid Section. Sub-section (5) regulates the
exercise of right of appeal conferred upon an '1Ssessee under Section 39 of
the Act, the object being to keep in balance the right of the aggrieved person
and the right of the State to speedy recovery of tax. The Full Bench of the
Punjab & Haryana High Court in Mis. Emerald International Ltd. (supra) C
considered the scope of Section 39(5) of the Act and concluded:

"As a sequal to our discussion on the question of law referred to us
the following conclusions can be deduced:

(a) The appeal is a creation of a statute and in case a person wants
to avail of the right of appeal, he has to accept tlie conditions D
imposed by the statute.
(b) The right of appeal being a creature of Statute the legislature
could impose conditions for exercise of such a right. Neither
there is a constitutional nor legal impediment for imposition of
such a condition. E
(c) The right of appeal is neither natural nor inherent attaching to
a litigation and such a right neither exists nor can be assumed
unless expressly given by the Statute.
(d) Even if, this Court was to interpret the bare provisions of two
F
Statutes, i.e., The Punjab General Sales Tax Act and the Haryana
General Sales Tax Act, it could safely be held that there is a
complete bar to the entertainment of an appeal by the Appellate
Authority without the payment of tax amount unless the
Authority is satisfied that the dealer is unable to pay the amount
so assessed and only in the situation the appellate authority for G
the reasons to be recorded in writing can entertain the appeal
without deposit of the payment of such amount.

(e) Neither on the wording nor in view of the spirit of the Punjab
and Haryana Acts is possible to hold that the Appellate
Authority should see the prima facie nature of the case while H
194 SUPREME COURT REPORTS (2000] SUPP. 3 S.C.R.

A hearing the stay matter.

(f) The factum of tax assessed being illegal cannot be a relevant
consideration for grant of stay by an appellate authority.

(g) The High Court in exercise of its jurisdiction under Article 226
of the Constitution of India in rarest of the rare cas<"c; in the
B
given facts and cfrcumstances, can grant stay and waive the
condition of pre-deposit of tax and the existing alternative remedy
in such circumstances would be no ground to refuse interference."

We find substance in the submission of Mr. K.T.S. Tulsi, Senior Advocate
C that the inability mentioned in the proviso refers to the paying capacity and
financial position of the Cumpany and its scope cannot be widened to the
extent as suggested by Mr. Nariman. The word "pay" with its grammatical
variation and cognate expressions, when used with reference to the tax amount,
m ms "deliver and render" the amount, it indicates the discharge of an
obligation rather than an investment of money. "To pay" is a generic term and
D the rest of the proviso refers to the modes of payment. It may mean the
payment of the amount of tax assessed. The dictionary meaning of the
"payment" is the performance of an obligation for the delivery of money. In
, legal contemplation "payment" is the discharge.of an obligation by the delivery
I
of money or its equivalent. The word "unable" used in the proviso has been
E defined to mer.•: 'not having sufficient strength, power and m~ans' '11 relation
to money, it means insufficiency of funds. It follows, therefort:, that the
inability to pay the amount is referable to the paying capacity of the person
concerned and not his legal or actual liability to pay the amount demanded.
It has to be kept in mind that the payment made under the proviso only
enables the appellate court to entertain the appeal for adjudication and does
F not decide the rights of the parties.

The Act has been enacted and the right of appeal provided with a du~
purpose of protecting the interests of the assessee and also to safeguard the
interests of the Revenue. The provision appears to have been made to explore
G further sources for raising Revenue of the State. This Court ln Assistant
Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop Tndia
Ltd & Ors., (1985) I SCC 260 observed that " .. No governmental business or
for that matter no business of any kind can be run on mere bank guarantees.
Liquid cash is necessary for the running of a Government as indeed any other
enterprise. We consider that where matters of public revenue are concerned,
H it is of utmost importance to realise that interim orders ought not to be
STATEv. MARUTI UDYOGLTD. [SETHI, J.] 195
granted merely because a prima facie case has been shown. More is required." A

In the instant case the prayer was made to grant stay on the ground
that "the petitioner has not collected any additional tax from the customers
and is unable to deposit the amount of additional demand created by patently
illegal orders". The respondent Company nowhere mentioned to or referred
its inability to pay the amount 'on account of its alleged financial difficulties B
or incapacity to make the requisite payment. The legality of the additional
demand created could not be made the basis for insisting to entertain the
appeal without prior payment, as that would have required the determination
on the merits of the appeal. Relying upon the Full Bench judgmP.nt of the
jurisdictional court in Mis.Emerald International Ltr..'s case, the Tribunal was C
competent in passing the order (Annexure P-8) which was impugned in the
High Court. The Division Bench of the High Court was not justified in
ignoring the Full Bench judgment and the judgment of another Bench of
coordinate jurisdiction while allowing the writ petition of the Company. The
Division Bench even failed to mention the circumstances which justified the
passing of the order for allowing the writ petition with direction to the D
Tribunal for disposal of the appeal on furnishing of the bank guarantee by
the Company. Merely because the Tribunal had insisted upon the payment
of the amount in terms of proviso to Sub- section (5) of Section 39 of the Act,
should not have annoyed the court while granting the relief in exercise of its
powers under Article 226 of the Constitution. The impugned order being E
contrary to settled principles of law cannot be sustained and is accordingly
set aside.

Shri R.F. Nariman, learned counsel made a last and alternative plea that
in case this Court is not inclined to uphold the impugned judgment, a relief
may be granted to the respondent for dispensing with the deposit of the F
interest portion at least on the amount of Central sales tax assessed by the
order challenged in the statutory appeal. Since no such plea was made before
the appellate Tribunal, we are not considering such a plea now. However, we
permit the respondent to make such a plea before the appellate Tribunal after

.. depositing the entire balance amount. If any such plea is made within 15 days
after depositing the entire balance amount, the appellate Tribunal shall take G
a decision thereon before considering the statutory appeal on merits .

The appeal is disposed of accordingly.

B.S. Appeal disposed of.