ARIJIT PASAYAT ( 1 ) ORDER dated 26. 8. 1999 disposing of revision petitions under Section 47 of thedelhi Sales Tax Act, 1975 (in short, the Act ) and Section 9 (2) of the Central Salestax ACt, 1956 (in short, the Central Act ) forms subject matter of challenge in this with petition. ( 2 ) BACKGROUND in which the writ petition has come to be filed is as follows :petitioner has been assessed to extra demands of Rs. 2,34,93,150. 00 and Rs. 1,43,44,384. 00 under the Act and Central Act respectively. Appeals have been filedagainst he said orders of assessment. Simultaneously an application for stay hadbeen filed, The Additional Commissioner No. 1 directed payment of Rs. 20 lakh andrs. 5 lakh respectively. By the impugned revisional order, the commissioner reducedthe quantum to Rs. 15 lakhs and Rs. 3 lakhs respectively. An application for review ofthe order was turned down by the order dated 25. 1. 2000 However, time for depositasstipulated by the earlier order was extended. ( 3 ) THE grounds on which the demands have been raised under the Act and thecentral Act, are, as per orders of assessment, as follows : ( 4 ) ACCORDING to learned counsel for petitioner, requirement of pre-deposit isunreasonable restriction on the right to file an appeal against an adverse adjudication. In any event, according to him, imposition of stringent conditions makes the rightillusory. In the case at hand, it is submitted that the authorities lost sight of the actualfactual position and acted on surmises and conjectures to levy huge extra demands. Several documents have been pressed into service to show that the assessmentswere unsustainable. Additionally, it is urged that precarious financial position of thepetitioner makes it impossible to comply with the conditions. It is further submittedthat on a careful consideration of the relevant materials, the assessment will not standthe test of appeal. Liquidation of the amounts directed to be deposited would causeundue hardship to the petitioner. In essence it is submitted that the discretion o1dispensing with pre-deposit has not been judiciously exercised. Learned counsel for the Revenue, on the other hand, submitted that the documentsand materials placed on record were duly analysed by the assessing officer and theconclusions are in order. Petitioner has not made out a case for being granted stay realisation of the extra demands. Learned counsel for the Revenue, on the other hand, submitted that the documentsand materials placed on record were duly analysed by the assessing officer and theconclusions are in order. Petitioner has not made out a case for being granted stay realisation of the extra demands. Nowhere before the first appellate authority or therevisional authority any financial stringency was pleaded and for the first time withoutany material to support the stand, a contention cannot be raised. It is pointed out thatagainst the demand of more than Rs. 3 crores. only Rs. 18 lakhs have been directe (to be paid. ( 5 ) SECTION 43 (5) appearing in Chapter 8 of the Act deals with the filling of andappeal, where it has clearly stipulated that no appeal against the assessment with owithout penalty or order imposing penalty shall be entertained unless such an appeallis accompanied by satisfactory proof of payment of the tax with or without penalty itrespect of which appeal has been preferred. However, a discretion has been conferrence on the authority to entertain an appeal for reasons to be recorded in writing theinsistence on full amount being paid, need not be there furnishing any prescribeamount of security for the amount as may be directed ordeposit of smaller sum theraised as extra demand. ( 6 ) REQUIREMENT of deposit of the amount in dispute is a condition precedent forentertaining the appeal and not for filing the appeal. The provisions are mandatory!nature and failure to deposit the amount in question would render the appeal;incompetent. While considering an application for grant of stay, the concerneauthority has to, inter alia, consider the following aspects : (A) Whether there is prima facie case in favour of the assessee. (b) the balance of convenience qua deposit or otherwise. (c) Irreparable loss, if any, to be caused in case stay is not granted. (d) Safeguarding of public interest. In the Assistant Controller Central Excise West Bengal Vs. Dunlop, [1985] 1elt 22, (= air 1985 SC 330 ) the Apex Court held that normally four factors for graphof stay order should be kept in view i. e. prima fade case, which by itself is notenough, balance of convenience, possibility of irreparable injury and safeguardingthe public interest. ( 7 ) RIGHT of Appeal is a creation of statute. But in exercise of such right, there is noinherent or constitutional right to file an appeal. ( 7 ) RIGHT of Appeal is a creation of statute. But in exercise of such right, there is noinherent or constitutional right to file an appeal. While granting such right, legislaturecan impose any condition. It was observed in Anant Mills Co. Ltd. Vs. State ofgujarat (AIR 1976 SC 1234) and State of Bombay Vs. M/s. Supreme Generalfilms Exchange Ltd ( AIR 1960 SC 980 ), that legislature can, while granting right ofappeal, lay down a condition for deposit of tax as it is creation of statute. Legislaturecan also put restriction on it so as to curtail it. There is nothing wrong if under samestatute, a right of Appeal is given and then some restrictions are put over it. Right toappeal is a substantive right and not a mere matter of procedure. But such right isneither an absolute right nor an ingredient of natural justice. It must be conferred bystatute and can be exercised only as permitted by statute. There is no fetter inimposing conditions about deposit of fees etc. There are many fiscal statutes likecentral Excise and Salt Act, Customs Act, Sales tax Acts of various States and manyother similar statutes, which mandate deposit of disputed amount as a conditionprecedent for entertaining appeal. Condition of deposit of court fee in many casesmerely regulates exercise of right of appeal. It is open to legislature to impose anaccompanying liability upon a party upon whom legal right is conferred or to prescribeconditions for exercise of right. Any requirement for discharge of that liability orfulfillment of that condition in case the party concerned seeks to avail said right is avalid piece of legislation and Article 14 has no application. Observations in the caseof Hannah Cohen Vs. Beneficial Industrial, (1949) 337 US 541) lend somesupport to the view we have taken. Headnote 10 which is based upon the observationsin the body of the judgment reads as follows : "10. A state statute which requires that in a stock-holder s derivative action aplaintiff who owns less than 5 per cent of the Defendant Corporation soutstanding share or shares having market value not exceeding $ 50. Headnote 10 which is based upon the observationsin the body of the judgment reads as follows : "10. A state statute which requires that in a stock-holder s derivative action aplaintiff who owns less than 5 per cent of the Defendant Corporation soutstanding share or shares having market value not exceeding $ 50. 000give security for the reasonable expenses including counsel fee, incurred bythe corporation and by other parties Defendant and which makes the Plaintiffliable for such expenses if he does not make good his claims, and subjectsthe amount of security to increase if the progress of the litigation reveals thatit is inadequate or to decrease if it is proved to be excessive, does not violatethe contract clause or the due process clause or the equal protection clauseof the Federal Constitution " ( 8 ) IT has to be noted that under proviso to Section 30 (1) of Workmen scompensation Act, 1923 no appeal by an employer shall lie in respect of demandunderclause (a) of said subsection, unless memorandum of Appeal is accompaniedby a certificate by Commissioner to the effect that appellant has deposited with himthe amount payable under order appealed against. In D. Narayanan Nain. Vs. Union of India, (1990) 2 LLJ 500) it was held that provision which requires depositof fee before resorting to appeal cannot be said to be illegal and the inconveniencecaused to appellant to make payment is no reason to strike down said statutoryprovisions. It was observed by Punjab and Haryan High Court in Piara Singh Vs. Commissioner, Workmen s Compensation, Patiala ( 1987 LIC 818) that simplefact that compensation awarded has to be deposited before an appeal can beentertain would not furnish ground to entertain writ petition by-passing statutoryremedy for appeal. In Nathamani Gounder Vs. State of Tamil Nadu, ( 19. 86)2 LLJ423), it was observed that if the legislature provides for no appeal in a particularcase, or provides for an appeal subject to certain conditions it is a piece of properlegislation. Even if a statute denied right of appeal, statute cannot be said to be badlegislation. Reference to the other statutes where conditions are imposed forentertaining an appeal has been made for purpose of showing that even whereapparently more onerous requirements and/or conditions have been imposed thatperse has been held to be no ground for declaration of a provision ultra vires. Even if a statute denied right of appeal, statute cannot be said to be badlegislation. Reference to the other statutes where conditions are imposed forentertaining an appeal has been made for purpose of showing that even whereapparently more onerous requirements and/or conditions have been imposed thatperse has been held to be no ground for declaration of a provision ultra vires. ( 9 ) IT is submitted by the petitioner that there is clearly non-consideration of relevantdocuments and erroneous conclusions have been arrived at. In fact documents whichhave already been brought on record have not been taken note of by the assessingofficer. It is also submitted that after production of E-l forms therein without any basisit has been concluded that the amounts therein do not tally with the books of account. Attempt was also made to show that there was no discrepancy, variation or differenceas adjudged by the assessing officer. The effect of the documents which are referredto by the learned counsel for the petitioner are to be examined in detail by the firstappellate authority. It would not be desirable for us to embark upon detailed enquiryto find out whether the stand of the petitioner is on terra firma. On the contrary, what isrequired to beseen is whether a prima facie case has been made out for grant of fullstay, It would require verification of the records and examination in detail to judgeacceptability of the stand. So far as the disallowances is relatable to the forms areconcerned, they have to be examined in detail with reference to books of account. Any expression finally on merits at this juncture relating to that would not be desirableand proper as possibility of such conclusions influencing the first appellate authoritycannot be ruled out. It is to be noted that the prescribed authority is conferred withdiscretion to dispense with pre-deposit conditionally or in full or in part. Such discretionis governed by a maxim " Discretio est discernere per legen quid sit Justum" (Discretion consists in knowing what is just in law ). Discretion in general is thediscernment of what is right and proper. It denotes knowledge and prudence, thatdiscernment which enables a person to judge critically of what is correct and properunited with caution, to discern between falsity and truth, between shadow andsubstance, between equity and colourable glosses and pretences and not to doaccording to the will and private affections or ill will. It denotes knowledge and prudence, thatdiscernment which enables a person to judge critically of what is correct and properunited with caution, to discern between falsity and truth, between shadow andsubstance, between equity and colourable glosses and pretences and not to doaccording to the will and private affections or ill will. It has to be done according to therules of reasons and justice, not according to private opinion. It has to be doneaccording to law and not humour. It is not be arbitrary vague and fanciful but legal andregular. In the case at hand the authorities have made all elaborate analysis offactualstands of Petitioner to the extent desirable while dealing with an application for stay. It suffers from no inherent fallibility to warrant interference. Additionally, financialhardship was not one of the grounds urged earlier. Stand regarding financial hardshiphas not only to be specifically pleaded but also materials to substantiate it must beplaced on record which has not been done. ( 10 ) ON a consideration of the materials on record we do not consider this to be a fitcase where any modification of the order passed by the Commissioner is called for. Accordingly, the amounts directed to be paid by him needs no modification. However,time fixed by the Commissioner has elapsed, In case the petitioner deposits theamounts directed to be paid by the Commissioner, by the end of July, 2000 theappeat shall be entertained for disposal on merits if they are otherwise free fromdefect. Writ Petition is accordingly disposed of.