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TMI Blog1987 (7) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... s, therefore, dismissed. Excise Appeal No. 314/87. This appeal is directed against the order of the Collector of Central Excise (Appeals), Madras, dated 9-7-1987 directing the appellants to deposit the entire duty amount imposed by the Assistant Collector of Central Excise, Visakhapatnam, dated 27-2-1987, by 31st July, 1987 and furnish evidence of such deposit by 5th August, 1987 during the pendency of the appeal before the lower appellate authority. 2A. At the outset, to a specific query from the Bench with reference to the maintainability and competence of the appeal, Shri Bhave, Chief Tax Manager of the appellants company, made elaborate submissions for a considerable length of time. The impugned order admittedly is not an order on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the pendency of appeal. It was further contended on behalf of the appellants that the impugned order is violative of the principles of natural justice inasmuch as the same was passed without hearing the appellants. It was submitted that though there is no specific prayer for personal hearing in the appellants application before the lower appellate authority seeking waiver of prior deposit, the appellants took out another application on 26th June, 1987 seeking a personal hearing regarding the stay of recovery of the tax levied by the original authority and, therefore, the Collector of Central Excise (Appeals) should have afforded the appellants an opportunity of being heard even on a waiver petition before passing the impugned order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 F of the Act and in exercise of quasi-judicial discretionary power directing the appellants to make a deposit is an appealable order or not. In our opinion, the impugned order is only an interlocutory order and is not an appealable order and admittedly appeal is still pending before the lower appellate authority, who is in seisin of the issue. It is a well settled proposition of law that there is no bar on principles of res judicata for filing any number of interlocutory applications before the quasi-judicial authority during the pendency of the appeal. The present impugned order has been passed by the lower appellate authority in exercise of judicial discretion taking into consideration the relevant facts in regard to the prior deposit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proof of the same. The learned D.R. does not have any instruction in this regard either. Nevertheless, without standing on technicalities, we would like to proceed on the basis that such an application was as a matter of fact filed by the appellants. 6. A similar question under the provisions of the Act as to whether an order passed during the pendency of an appeal by an adjudicating authority on application seeking stay of the recovery of duty was interlocutory in nature hence not appealable or a final order appealable, came up before the Tribunal in the case of International Computers Indian Manufacture Limited, Bombay v. Collector of Central Excise, Bombay, reported in 1985 (19) E.L.T. 83 = 1985 ECR 567 (Cegat). We would like to note t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Salt Act, 1944 the right of appeal is conditioned by the fact of pre-deposit of the duty or penalty during the pendency of the appeal unless otherwise dispensed with as provided for in Section 35F of the Act. It was contended on behalf of the appellants that the ratio in the ruling of the Tribunal deals only with an application seeking stay of recovery of the duty, which according to the appellants, is totally different from an application seeking waiver. This plea of the appellants, we are afraid, is very much against the appellants company itself, because, as indicated earlier, in the application seeking waiver of prior deposit of duty there is no specific prayer for personal hearing and merely because in a later application specifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders passed by the trial Judge. The courts must give sufficient allowance to the trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice. (2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings." In the present case the impugned order can be no stretch of imagination be characterised as a final order, because admittedly the appeal is still pending before the lower appellate authority. The impugned order cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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