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TMI Blog1988 (1) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Section 35A readi with section 35 F of the Central Excises Salt Act, 1944 and having regard to the facts and circumstances of the case, the Order dated 9th July, 1987 passed by the Collector (Appeals), Madras is an order passed under Section 35A against which an Appeal is maintainable in the Appellate Tribunal under Section 35B(l)(b) of the Act? (ii) Whether on the facts and in the circumstances of the case the Tribunal was justified in law in holding that the Order dated 9th July, 1987 passed by the Collector (Appeals), Madras u/s 35 F was not a final Order against which an Appeal lies u/s 35A of the Act, merely on the basis that the Appeal itself was pending, even though the said Order decided the vital and valuable rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this regard meriting reference to the High Court. It was further submitted that even though a view that such orders are only interlocutory orders has been by the Special Bench of the Tribunal, Shri Bhave urged that unless the question, which is a question of law, is settled either by the High Court or by the Supreme Court it would be referrable as a question of law in terms of Section 35 G of the Central Excises Salt Act, 1944. 3. Heard Shri Vadivelu, the learned D.R. 4. We have carefully considered the submissions made before us. A reference to certain factual details would be relevant for appreciating the issues involved in the application. The applicant herein preferred an appeal before the Collector of Central Excise (Appeals), M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Supreme Court :- Thus, any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t had time enough to seek such modification of the interim order before the lower appellate authority even at the time when the Tribunal took up the applicant s appeal for disposal. These are all pure questions of fact. One other important factor we would like to note in this context is the very prayer of the applicant in his miscellaneous petition in para 5 wherein the applicant had prayed that in the event the case cannot be heard on an out-of-turn basis before the end of this month, the appeal case be admitted and an ad interim order be passed extending the due date of compliance viz. 31.7.1987 by about two months . The Tribunal has, therefore, held in the impugned order that when the applicant had option to exercise the right seeking m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference would lie as against this order of the Tribunal. 7. Shri Bhave at this stage while the order was being dictated produced before us the ruling of the Supreme Court in the case of Commissioner of Income-Tax, Bihar Orissa v. S. P. Jain, reported in 1973 I.T.R. Vol. 87 page 370, and urged that the High Court and the Supreme Court have always the jurisdiction to interfere with the findings of the appellate Tribunal, if it appears that either the Tribunal has misunderstood the statutory language, because the proper construction of the statutory language is a matter of law, or it has arrived at a finding based on no evidence of where the finding is inconsistent with the evidence or contrary of it, etc. Nobody can quarrel with the axi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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