J. Kanakaraj, J. (Chairman). - (1.)PETITION on being called today upon hearing both sides the Tribunal ordered as follows :
A common order was passed by the Sales Tax Appellate Tribunal, Madras, on August 18, 1989 holding that the appellants should pay enhanced fees on the appeal memorandum as per the amended Rule 29(1)(c) of the Tamil Nadu General Sales Tax Rules, 1959. Some of the appellants in the said common order are the petitioners before us. We will set out the facts in the case of the firm Sivam Trading Company. For the assessment year 1980 -81, the assessee suffered an order of assessment on June 21, 1982. The order of assessment was revised on May 26, 1986. Against the revised order of assessment the petitioner preferred an appeal to the Appellate Assistant Commissioner and it was dismissed on December 22, 1987.

(2.)NOT being successful, a second appeal was preferred to the Sales Tax Appellate Tribunal and the appeal was filed on April 14, 1988. In the meanwhile Tamil Nadu Act 78 of 1986 was enacted on December 17, 1986 with effect from September 8, 1987. As per the amended provision the prescribed fee is 2 per cent of the disputed tax and penalty, subject to a minimum of Rs. 100 and a maximum of Rs. 2,000. Prior to the amendment the minimum fee was Rs. 25 and the maximum fee was Rs. 100. The petitioner had filed the appeal with a fee of Rs. 100 as per the unamended provision. The issue being raised before the Appellate Tribunal as to whether the unamended provisions will apply to the case of the petitioner and similar other appellants, the Appellate Tribunal passed the said order dated August 18, 1989. No doubt, the Appellate Tribunal has considered decisions relied on by the petitioners before coming to the conclusion that only the amended provisions will apply to the case of the petitioner.
Before us Mr. K. Ramgopal, the learned counsel for the petitioner, has placed certain decisions and argues that the fee payable at the time of the order of assessment should alone govern the case of the assessee. The date when the assessee files the appeal is irrelevant because the rights of the parties which were available or accrued to the petitioner on the date of the order of assessment cannot in any way be impaired.

(3.)THE issue before us is a familiar one and the question is whether the amendment to the fees payable on an appeal memorandum is a matter relating to procedure or it is a matter relating to the substantive rights of the petitioner. In [1953] 4 STC 114 (SC) ; : AIR 1953 SC 221 [Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh] it was held that the right of appeal is not merely the matter of procedure. It is a matter of substantive right of appeal to a superior Tribunal becomes a vested right in the aggrieved party, when proceedings are first initiated before the inferior Tribunal. Such a vested right cannot be taken away except by a clear intendment in the statute. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention is clearly manifested by express words in the statute. What is more even with regard to the impairment with the right of appeal, the Supreme Court had something to say, In that case it was argued that the requirement as to the deposit of the amount of the assessed cost will not affect the right of appeal itself, but only introduces a new matter of procedure. Observed the Supreme Court :
"There can be no doubt that the new requirement 'touches' the substantive right of appeal vested in the appellant. Nor can it be overlooked that such a requirement is calculated to interfere with or fetter, if not to impair or imperil, the substantive right. The right that the amended section gives is certainly less than the right which was available before. A provision which is calculated to deprive the appellant of the unfettered right of appeal cannot be regarded as a mere alteration in procedure. Indeed the new requirement cannot be said merely to regulate the exercise of the appellant's pre -existing right but in truth whittles down the right itself and cannot be regarded as a mere rule of procedure."