1. This is an appeal that has been preferred by the appellant against the order dated 07-07-2009, passed by the Ld. Dy. Commissioner, Sales Tax (Appeals) (Appellate Authority), Jammu, in Appeal No. 20/DCJ/AP/ST/1999-2000. The Appellate Authority has dismissed the appeal of the appellant summarily on the ground that the appellant has not filed proof of payment of 50% of the penalty imposed in the order impugned. According to the Assessing Authority this is required under clause (c) of the 2nd Proviso to Section 11 of the Jammu and Kashmir General Sales Tax Act, 1962. 2. The appellant in appeal before this Tribunal has now assailed the order of the Appellate Authority on the grounds interalia, that the appellant brought it to the notice of Ld. Dy. Commissioner, Sales Tax (Appeals), Jammu, that the appeal had been filed by him u/s 11 of the J&K GST Act, 1962, for the account period 1992-93 when there was no such condition or any provision in that section under which the Ld. Appellate Authority could insist on pre-deposit of 50% of the penalty imposed or 20% of the assessed tax for the purpose of entertainment of the appeal. In support of this contention the appellant depended on the judgment of the Hon'ble State Sales Tax Appellate Tribunal in the case "M/s Satnam Impex (P) Ltd. Vs Assessing Authority, Sales Tax, Circle-H, Jammu dated 30-01-2003" in which the Hon'ble Tribunal has held that condition of depositing 50% penalty is not applicable to the facts and circumstances of the case, a copy of which is also filed by the appellant. 3. The moot question requiring consideration is whether the order of the Appellate Authority can be maintained on the reasoning projected therein, i.e. whether the appellant was obliged to file proof of the payment of 50% of the penalty imposed on him by the Assessing Authority, as per the requirement of clause (c) of the 2nd proviso to Jammu and Kashmir General Sales Tax Act, 1962. In order to have a proper understanding of the matter it will be appropriate to go direct to the Section 11 of the Jammu and Kashmir General Sales Tax Act, 1962. In order to have a proper understanding of the matter it will be appropriate to go direct to the Section 11 of the Jammu and Kashmir General Sales Tax Act, 1962. The text of the section is:- Section 11:- Appeals:- A dealer or any other assessee objecting to an order passed by the Assessing Authority or any other Officer authorized under Section 15-A, other than the Deputy Sales Tax Commissioner, may within 30 days from the date on which he is served with the notice of demand, appeal to the Appellate Authority or if the order is made by the Dy. Commissioner, to the Commissioner; Provided that the Appellate Authority may admit an appeal after the said period of thirty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period; Provided further that no appeal shall be entertained by the said authority unless it is satisfied that:- (a) Where all the returns for a year have been filed, the amount of tax due under this Act on the turnover of sales or purchases, as the case may be, admitted by the appellant in the returns filed by him or at any stage in any proceedings under this Act, whichever is higher, has been paid; or (b) Where some of the returns for a year have not been filed or no return has been filed for such year, the amount of tax due under this Act, admitted by the appellant in the returns, if any, filed by him or at any stage in any proceedings under this Act or 20% of the amount of tax assessed, whichever is higher, has been paid; or (c) in case the appeal is against the imposition of penalty, 50% of the penalty levied has been paid; [Provided that the Appellate Authority may, for reasons to be recorded in writing, stay the recovery of the disputed amount of tax and penalty. However, the stay will not cover the amount of tax and penalty payable under clauses (a), (b) and of the 2nd Proviso] Explanation:- Nothing in this sub-section shall apply to the cases where the Commissioner in exercise of the powers vested under Section 8 makes an order extending the date of payment. 4. However, the stay will not cover the amount of tax and penalty payable under clauses (a), (b) and of the 2nd Proviso] Explanation:- Nothing in this sub-section shall apply to the cases where the Commissioner in exercise of the powers vested under Section 8 makes an order extending the date of payment. 4. From the perusal of the Section 11 given above it comes to the fore that the deposit of 50% of the penalty, where the appeal is against the order of imposition of penalty, is a statutory requirement, the intention being to ensure that the appellant is seeking the remedy in good faith, with an honest intention and not for the heck of it. It will be recalled that Sub-Section (1) of Section 11, supra, was substituted, first by Act No. XX of 1981, Act No. X of 1997 dated 15-05-1997 & again substituted, subsequently vide Act No. III of 1998 dated 06-05-1998 and the provisos and explanation were inserted vide Act No XIII of 2000. Resort can be had in this behalf to the judgment delivered, by this Tribunal, in M/s Satnam Impex (P) Ltd., Bakshi Nagar, Jammu, the relevant excerpts of which are given below:- "On the second ground that the appellant has failed to deposit 50% of the penalty imposed it was stated by Mr. Pargal, counsel for the appellant that the appeal had been filed by the appellant u/s 11 of the J&K GST Act, 1962 for the accounting year 1998-99 and there was no condition or any provision contained in section 11 of the J&K GST Act, 1962 as may have been inforce for the year 1998-99 whereby the Appellate Authority could insist on pre-deposit of 50% of the penalty imposed or 20% of the assessed tax for the purposes of entertainment of an appeal. Dwelling further, Mr. Pargal submitted that the present provision whereby the 50% of the penalty imposed or the 20% of the tax assessed is required to be pre-deposited before filing of an appeal u/s 11 of the J&K GST Act, 1962 was introduced on 14-11-2000 vide Act No. XIII of 2000. Dwelling further, Mr. Pargal submitted that the present provision whereby the 50% of the penalty imposed or the 20% of the tax assessed is required to be pre-deposited before filing of an appeal u/s 11 of the J&K GST Act, 1962 was introduced on 14-11-2000 vide Act No. XIII of 2000. Immediately prior to the above amendment/ introduction the relevant provision as contained in the J&K GST Taxation Laws (Amendment) Act 1998 Act No. III of 1998 of 6th May, 1998) whereby clause (1) of section 11 of the J&K GST Act, 1962 (ACT XX of 1962) was substituted read as under:- (1) For clause (1), the following shall be substituted, namely:- (1) A dealer or any other assessee objecting to an order passed by the Assessing Authority or any other officer authorized under section 15-A , other than the Deputy Sales Tax Commissioner, may within 30 days from the date on which he is served with the notice of demand, appeal to the Appellate Authority or if the order is made by the Commissioner, to the Commissioner (Sic). 5. The contentions raised by Mr. Pargal, counsel for the appellant appear to be full of force and substance. I say so, because, the present provision whereby 50% of the penalty imposed or 20% of the tax assessed is required to be pre-deposited before filing of an appeal u/s 11 of the J&K GST Act, 1962 was introduced vide Act No. XIII of 2000 and there was no such requirement contained in Section 11 of the Act for the purposes of entertainment of an appeal pursuant to the J&K Taxation Laws (Amendment) Act, 1988 whereby clause (1) of Section 11 of the Act was completely substituted. In view of this position the assessment for the year 1998-99 as in the present case and the appeal filed in respect of the said accounting year u/s 11 of the Act are to be governed by clause (1) of Section 11 of the Act which was introduced vide J&K Taxation Laws (Amendment) Act, 1988. As per the clause (1) of Section 11 which has substituted the earlier clause(1) vide J&K Taxation Laws (Amendment) Act 1988, there was no requirement for the pre-deposit of the 20% of the assessed tax or 50% of the penalty imposed for the purposes of the entertainment of an appeal u/s 11 of the J&K GST Act, 1962. 6. As per the clause (1) of Section 11 which has substituted the earlier clause(1) vide J&K Taxation Laws (Amendment) Act 1988, there was no requirement for the pre-deposit of the 20% of the assessed tax or 50% of the penalty imposed for the purposes of the entertainment of an appeal u/s 11 of the J&K GST Act, 1962. 6. The contention of Mr. M. A Bhat, counsel for the Sales Tax Department that the requirement of pre-deposit of 50% of the penalty imposed or the 20% of the assessed tax imposed by Act No. XIII of 2000 will apply retrospectively and any appeal filed after the coming into force of the said Act No. XIII of 2000 will be governed by the provisions of the said Act irrespective of the fact whether the accounting years are prior to the coming into force of the ACT No. XIII of 2000 or after that, appears to be misconceived and not based on correct appreciation of the relevant provision. I reduce in writing the reasons in support of my above view: 1. The right of appeal vests in a dealer/ assessee when he/she files a return under the J&K GST Act, 1962 or when he is required to file a return within the date prescribed under the Act/ Rules, whichever is earlier. 2. In respect of the transactions and assessments which have taken place prior to the coming into force of the Act No. XIII of 2000, the provisions of Act No. III of 1998 will alone apply as the Amendment Act No. XIII of 2000 is not retrospective in effect. 3. Reliance is placed in support of the view taken by me on a decision delivered by Tamil Nadu Taxation Special Tribunal reported in STC Vol. 119-2000 at page 591 (Hugs Advertising Industries and Ors V/s Commissioner, Tax, Vatapalani Assessment Circle Chennai and Ors.) In the said case the facts were the T.N GST (Fourth Amendment) Act 1999 amended Sections 31, 31-A and 36 of the T.N. GST, Act 1959 and made payment of 25% of the disputed tax a condition for entertaining an appeal. 7. The question that arose in the said case was whether the Tamil Nadu GST (Fourth Amendment) Act, 1999 would apply in all cases after the said date or will not apply to the assessments and returns filed by the assesses prior to 1999. 7. The question that arose in the said case was whether the Tamil Nadu GST (Fourth Amendment) Act, 1999 would apply in all cases after the said date or will not apply to the assessments and returns filed by the assesses prior to 1999. For determination of the question involved in the said case another question as to when right of appeal vests in a party was considered at length. After hearing the parties and taking proper note of the case law on the subject, which included cases decided by the Hon'ble Supreme Court and the various High Courts, Tamil Nadu Special Tribunal held as under:- (a) The right of appeal inheres in a dealer/ assesses the very moment he files a return or when he is obliged to file a return within the date prescribed under the ST Rules, whichever is earlier. (b) In a case where the date of return or when the return became due was prior to the amendment Act, 1999, the provisions of the Amendment Act will not apply. (c) In respect of the transactions and the assessment prior to the date of enforcement of amendment Act 1999 the Law as it existed prior to the amendment Act of 1999 will alone apply. 8. I accordingly hold that the present provision of Section 11(1) of the J&K GST Act, 1962 introduced vide Act No. XIII of 2000 whereby 50% of penalty imposed and 20% of the tax assessed are required to be pre-deposited before filing of an appeal u/s 11 of the J&K GST Act, 1962 will not apply to the transactions/ assessments made prior to 2000. As far as the present case is concerned as the transaction and assessment have been made prior to the coming into force of the Act No. XIII of 2000 the Law as it existed prior to the Act No. XIII of 2000 will alone apply. To make it clear I would like to state here that clause (1) of Section 11 which was substituted vide the J&K Taxation Laws (Amendment) Act 1998 --Act No. XIII of 1998 will apply in the present case. To make it clear I would like to state here that clause (1) of Section 11 which was substituted vide the J&K Taxation Laws (Amendment) Act 1998 --Act No. XIII of 1998 will apply in the present case. Since there was no condition attendant for purposes of the entertainment of an appeal u/s 11 of the Act, the Appellate Authority, in my opinion, was, therefore, not justified in insisting on the fulfillment of the requirement to make payment of the 50% of the penalty imposed before filing of an appeal. The order impugned to this effect therefore is liable to set aside". 9. The appeal has been filed, by the appellant, under section 11 of the Jammu and Kashmir General Sales Tax Act, 1962 for the accounting years 1992-93, 93-94 & 94-95 when the condition of the deposit of 50% penalty at the time of the entertainment of the appeal, before the Assessing Authority, was not applicable. This issue has not been deliberated upon by the Assessing Authority. The judgment of the Tribunal quoted above cuts at the very root of the order passed by the Assessing Authority and as such the same cannot sustain. The order appealed against is accordingly set aside and the case is, remanded back to the Ld. Dy. Commissioner, Commercial Taxes (Appeals) for consideration of the appeal of the appellant on merits. The record of the Appellate Authority be remitted back forthwith. Ld. Counsel for the parties are directed to appear before the Appellate Authority on 28-11-2011, and till then the demand created by the Ld. Assessing Authority is stayed.