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TMI Blog1985 (11) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... 81 and purporting to be one issued under the proviso to Section. 28 of the Customs Act, (1962) (the Act, for short) was issued to the appellant demanding payment of ₹ 1,31,615.57 (Rupees One Lakh, Thirty One Thousand, Six Hundred and Fifteen and paise fifty seven only) towards duty short-levied or explain as to why the aforesaid amount should not be recovered under the provisions of the Act; (iii) the demand was confirmed in adjudication by the Assistant Collector, without prejudice to any other action that may be taken against the appellant under the provisions of the Act, by his order dated 19-2-1983, (and communicated to the appellant on 4-2-1984); (iv) in appeal before the Collector (Appeals), the appellant, inter alia, prayed for the appeal to be entertained without requiring us to deposit the amount demanded i.e. to dispense with the deposit of the amount demanded in terms of Section 129-E of the Act; (v) on 23-10-1984. the learned Collector (Appeals) heard the question of dispensing with the deposit of the amount demanded and, not being satisfied that the deposit would cause undue hardship in terms of Section 129-E of the Act, required the appellant by n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the final orders made by the Collector (Appeals) on 21-1-1985, dismissing the appeals, are such as are comprehended by Section. 128A (3) of the Act, for appeals lie to the Tribunal, in terms of Section 129 -A (1) (b) of the Act, only against orders passed by the Collector (Appeals) under Section. 128A(3). 4. (a) Shri A.K. Jain, for the respondent, submitted, inter alia, that- (i) a right of appeal inheres in no one and for its maintainability it has to have a clear authority of law [reliance upon AIR 1974 SC 1126 [Smt. Ganga Bai v. Vijaya Kumar Others]; (ii) the question therefore arises if by virtue of any statutory provision the orders now impugned are appealable; (iii) obviously the orders made by the Collector (Appeals) were not on merits, since, ex facie, they say without going into the merits of the case . The orders were, in fact, made pursuant to the provisions of Section. 129-E of the Act under which an appeal could be rejected, if a deposit of the duty demanded or penalty levied is either not deposited or dispensed with [reliance upon=1981 E.L.T. 679 (S.C)=AIR 1971 S.C. 2280- Navin Chandra Chhotelal v. Central Board of Excise and Customs] and reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be that an order under Section. 128-A (3) alone is appealable, in terms of Section. 129-A (1)(b), the orders in question by the Collector (Appeals), purporting, as they do, to dismiss the appeals before him cannot be under any provision other than Section. 128-A (3). The dismissal of the appeals results in confirming the Orders appealed against. The orders in question, in the premises, are thus squarely comprehended by Section.128-A(3) [reliance on 1956 S.C.R. 166 -M/s. Mela Ram v. Commissioner of Income Tax; 1963 (14) S.T.C. 46 -Commissioner of Sales Tax v. Aurobindo Auto Service; 1962 (13) S.T.C. 407 -Commissioner of S.T. v. Ramkaran Agarwala]; (ii) there is nothing in AIR 1971 S.C. 2280-(Navin Chandra Chhotelai v. Central Board of Excise and Customs) to indicate if a dismissal for failure to comply with an order thereunder is really one under Section. 128 or Section. 129 (as they read at the material time). The dismissal of the appeal in that case was not under Section. 129 but for non-compliance with Section. 129 . Nor did the Hon ble Supreme Court go into the question as to whether a Revision under Section. 130 of the Act (as it read then), comparable to S. 129-A, was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uters Indian Manufacturers v. CCE, Bombay] and the decision of the Madras High Court in (1985) 4 ECC 93 [The South Arcot Dt. Cooperative Spinning Mills Ltd. v. CEGAT-South Regional Bench]; (c) that a right of appeal is not an inherent right but statutory and circumscribed by such conditions as may be prescribed by the Statute is axiomatic and had been laid down by the Hon ble Supreme Court, not merely in AIR 1974 S.C. 1126 [Smt. Ganga Bai v. Vijay Kumar] but also in (1969) 2 SCWR 468 [Shankar Kerba Jadhav v. State of Maharashtra], 1973 S.C.D. 639 [Akalu Ahir v. Randeo Ram], and 1956 SCR 166 [Melaram v. C.I.T. Punjab] as well; (d) admittedly, it is only an order under Section. 128A(3) alone that is appealable, and no other in terms of Section. 129A (1)(b) of the Act; Orders made under Section. 129E of the Act, do not come within the scope of the aforesaid provisions: [1984 (18) E.L.T. 533 -Bhushan Industrial Co. (P) Ltd. v. Collector of CE, Chandigarh; and 1985 (19) E.L.T. 8-International Computers Indian Manufacturers v. Collector of CE, Bombay -construing the parallel provisions in Section. 35A, 35B and 35F in the Central Excises and Salt Act (1944)]; (e) an order m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 33 confers a right of appeal against all orders passed under Section. 31, it must also be appealable; (v) to fall within Section. 31, the order need not, necessarily, be on merits and it is sufficient if the effect of the order is to confirm the order below; (vi) limitation is not the only preliminary ground on which an appeal could be disposed of without consideration of merits : A rejection of an appeal for failure to comply with the provisions of Section. 30(3)- prescribing the form and manner of the appeal -is also an order under Section. 31 and, accordingly, appealable-[(1944) 12 1TR 59- Maharani Gyan Manjari Kuari v. C.I.T.]; (vii) there is thus authority for the position that Section. 31 should be liberally construed so as to include not only orders passed on a consideration of the merits but also orders which dispose of the appeal on preliminary issues, such as limitation and the like; (h) needless to say, the decision squarely applies to the facts of this case, and it has to be held that the order disposing of the appeal is one confirming the order under appeal and is hence appealable in terms of Section. 129-A (1)(b) of the Act. In this context, one ..... X X X X Extracts X X X X X X X X Extracts X X X X
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