- motor vehicles act, 1988
[c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. r.n. misra, j.1. two questions have been referred by the member, additional sales tax tribunal, under section 21(4) of the orissa sales tax act for opinion of the court, namely :(1) whether, in the facts and circumstances of the case, the additional sales tax tribunal is justified in rejecting the assessee's contention that glass bangles are unclassified goods and hence taxable at 5 per cent ?(2) whether, in the facts and circumstances of the case, the additional sales tax tribunal is justified in treating glass bangles to come under the purview of entry no. 38 which relates to taxing on glasswares and china-clay goods and therefore the appropriate rate of tax would be 8 per cent ?2. at the hearing the assessee's counsel fairly concedes that the questions now raised were directly in issue in the case of shantilal kalidas v. state of orissa (1977) 43 c.l.t. 555, where after hearing the parties this court has come to hold that glass bangles are covered by entry no. 38 of the list of taxable goods. for the reasons given in the said decision with which we agree, we hold in favour of the revenue and against the assessee and answer the first question by saying that the additional sales tax tribunal was right in holding that glass bangles were not unclassified goods and were covered by entry no. 38. the second question need not be answered.there will be no order for costs.n.k. das, j.3. i agree.