1999 (5) TMI 40 - HC - Central Excise

Summary

Issues:
Challenge to judgment and order dated 3rd May, 1999 passed by the Single Judge disposing of the writ petition under Article 226 of the Constitution based on an order dated 31st March, 1999 by the Commissioner, Customs and Central Excise (Appeals), Ghaziabad. Question of maintainability of the Special Appeal under Chapter VIII, Rule 5 of the Allahabad High Court Rules.

Analysis:

1. The judgment in question focused on the challenge against the order passed by the Commissioner, Customs and Central Excise (Appeals), Ghaziabad, partially waiving the condition of pre-deposit of excise duty under Section 35F of the Central Excises and Salt Act, 1944. The Stamp Reporter's opinion raised concerns about the maintainability of the Special Appeal under Chapter VIII, Rule 5 of the Allahabad High Court Rules. The appellant's Counsel argued that the appeal was still pending before the Appellate Authority, and the order under challenge was passed pending appeal under Section 35F, not in exercise of appellate jurisdiction as per the High Court Rules.

2. Rule 5 of Chapter VIII of the Allahabad High Court Rules outlines the provisions for a Special Appeal. The Court clarified that an appeal shall lie from a judgment not passed in the exercise of appellate jurisdiction, subject to certain conditions. In the present case, the order by the Commissioner, Customs and Central Excise (Appeals), Ghaziabad, was considered to be made in the exercise of appellate power, falling under Clause (b) of Rule 5. The Court emphasized that even interim orders, such as exemptions under Section 35F, are considered as actions of an Appellate Authority when passed by the Commissioner. Therefore, the Court found the objection raised by the Counsel against the report submitted by the Stamp Reporter to be unsustainable.

3. Consequently, the Court held that the appeal failed and was dismissed as not maintainable under Chapter VIII, Rule 5 of the Allahabad High Court Rules. The decision was based on the interpretation of the rules regarding the jurisdiction and nature of the order passed by the Commissioner, Customs and Central Excise (Appeals), Ghaziabad, in relation to the appellate powers exercised. The Court's analysis focused on the specific provisions of the High Court Rules and the nature of the order under challenge to determine the maintainability of the Special Appeal in the given circumstances.

By thoroughly examining the legal provisions and the specific circumstances of the case, the Court provided a detailed analysis to address the challenge raised regarding the maintainability of the Special Appeal under the Allahabad High Court Rules. The judgment underscored the importance of understanding the nature of orders passed by appellate authorities and the implications of such orders on the jurisdiction of the High Court in entertaining appeals.