Calcutta High Court
Ambika Nahar Exports And Anr. vs Commissioner Of Customs (Port) And Ors. on 7 December, 2006
Equivalent citations: 2007(3)CHN625
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This appeal is directed against the order dated July 14, 2006 passed by the Customs, Excise, and Service Tax Appellate Tribunal, Eastern Zonal Bench, Kolkata, in Miscellaneous Application No. 249 of 2006 thereby directing the present appellant to deposit a sum of Rs. 20 lakh in terms of Section 129E of the Customs Act (hereinafter referred to as the Act) as condition precedent for hearing an appeal preferred under Section 129A of the Act before the Tribunal.
2. Mr. Basu, the learned Counsel appearing on behalf of the customs authority has taken a preliminary objection as regards maintainability of the present appeal under Section 130 of the Act on the ground that an order in terms of Section 129E of the same is not appealable under Section 130 thereof. According to Mr. Basu, only the final order passed in terms of Section 129B(1) of the Act can be challenged by way of an appeal under Section 130 of the Act. In support of such contention, Mr. Basu relies upon the following decisions passed by different Courts while construing similar provisions contained in different statutes like those mentioned in Sections 129A and 130 of the Act:
1. State of Maharashtra v. Marwanjee P. Desai and Ors. ;
2. Punjab Paint, Colour and Varnish Works and Anr. v. Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi and Anr. ;
3. Indotex Machinary Works v. Assistant Collector of Central Excise and Anr. ;
4. Maruti Udyog Ltd. v. Union of India ;
5. Commissioner of Income-tax and Anr. v. Income-tax Appellate Tribunal and Anr. ;
6. Munnal Lal and Sons v. Commissioner of Income-tax, U.P. reported in 1965 (LV) ITR 508;
7. Shaw Wallace and Co. Ltd. v. Income-tax Appellate Tribunal and Ors. ;
8. Tata Cummins Limited v. Commissioner of Customs (Appeals), CUSTA 1 of 2002 disposed of on March 2, 2006.
3. Mr. Chowdhury, the learned Counsel appearing on behalf of the appellant, has, however, seriously disputed the aforesaid preliminary objection raised by Mr. Basu and has contended that all the orders passed by the Tribunal in terms of Section 129A of the Act are appealable as would appear from the clear language employed in Section 130 of the same. Mr. Chowdhury, therefore, prays for entertaining the appeal and passing an order staying operation of the order impugned herein after overruling the preliminary objection raised by Mr. Basu.
4. Therefore, the preliminary question that arises for determination before us is whether an order directing the appellant to give security in terms of Section 129E of the Act can be challenged by preferring an appeal in terms of Section 130 of the said Act.
5. To appreciate the question involved herein, it will be profitable to refer to the provisions contained in Section 129A to Section 129E and Section 130 of the Act which are quoted below:
Section 129A. Appeals to the Appellate Tribunal.(1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order
(a) a decision or order passed by the Commissioner of Customs as an adjudicating authority;
(b) an order passed by the Commissioner (Appeals) under Section 128A;
(c) an order passed by the Board or the Appellate Commissioner of Customs under Section 128, as it stood immediately before the appointed day;
(d) an order passed by the Board or the Commissioner of Customs, either before or after the appointed day, under Section 130, as it stood immediately before that day:
Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in Clause (b) if such order relates to,
(a) any goods imported or exported as baggage;
(b) any goods loaded in a conveyance for importation into India, but which are not unloaded at their place of destination in India, or so much of the quantity of such goods as has not been unloaded at any such destination if goods unloaded at such destination are short of the quantity required to be unloaded at that destination;
(c) payment of drawback as provided in Chapter X, and the rules made thereunder:
Provided further that the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in Clause (b) or Clause (c) or Clause (d) where-
(i) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under Section 125, or
(ii) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved, or
(iii) the amount of fine or penalty determined by such order, does not exceed fifty thousand rupees.
(1A) Every appeal against any order of the nature referred to in the first proviso to Sub-section (1), which is pending immediately before the commencement of Section 40 of the Finance Act, 1984, before the Appellate Tribunal and any matter arising out of or concerned with such appeal and which is so pending shall stand transferred on such commencement to the Central Government and the Central Government shall deal with such appeal or matter under Section 129DD as if such appeal or matter were an application or a matter arising out of an application made to it under that section.
(1B)(i) The Board may, by notification in the Official Gazette, constitute such committees as may be necessary for the purpose of this Act.
(ii) Every committee constituted under Clause (i) shall consist of two Chief Commissioners of Customs or two Commissioners of Customs, as the case may be.
(2) The Committee of Commissioner of Customs may, if it is of opinion that an order passed by the Appellate Commissioner of Customs under Section 128, as it stood immediately before the appointed day, or by the Commissioner (Appeals) under Section 128A, is not legal or proper, direct the proper officer to appeal on its behalf to the Appellate Tribunal against such order.
(3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Commissioner of Customs, or as the case may be, the other party preferring the appeal.
(4) On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in such manner as may be specified by rules made in this behalf against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in Sub-section (3).
(5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in Sub-section (3) or Sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period.
(6) An appeal to the Appellate Tribunal shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf and shall, irrespective of the date of demand of duty and interest or of levy of penalty in relation to which the appeal is made, be accompanied by a fee of
(a) where the amount of duty and interest demanded and penalty levied by any officer of customs in the case to which the appeal relates is five lakh rupees or less, one thousand rupees;
(b) where the amount of duty and interest demanded and penalty levied by any officer of customs in the case to which the appeal relates is more than five lakh rupees but not exceeding fifty lakh rupees, five thousands rupees;
(c) where the amount of duty and interest demanded and penalty levied by any officer of customs in the case to which the appeal relates is more than fifty lakh rupees ten thousand rupees:
Provided that no such fee shall be payable in the case of an appeal referred to in Sub-section (2) or a memorandum of cross-examination referred to in Sub-section (4). (7) Every application made before the Appellate Tribunal,
(a) in an appeal for grant of stay or for rectification of mistake or for any other purpose; or
(b) for restoration of an appeal or an application, shall be accompanied by a fee of five hundred rupees:
Provided that no such fee shall be payable in the case of an application filed by or on behalf of the Commissioner of Customs under this Sub-section.
Section 129B. Orders of Appellate Tribunal.(1) The Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary.
(1A) The Appellate Tribunal may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing:
Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.
(2) The Appellate Tribunal may, at any time within six months from the date of the order, with a view to rejecting any mistake apparent from the record, amend any order passed by it under Sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Customs or the other party to the appeal:
Provided that an amendment which has the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the other party shall not be made under this Sub-section, unless the Appellate Tribunal has gave notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard.
(2A) The Appellate Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of three years from the date on which such appeal is filed:
Provided that where an order of stay is made in any proceeding relating to an appeal filed under Sub-section (1) of Section 129A, the Appellate Tribunal shall dispose of the appeal within a period of one hundred and eighty days from the date of such order:
Provided further that if such appeal is not disposed of within the period specified in the first proviso, the stay order shall, on the expiry of that period, stand vacated.
(3) The Appellate Tribunal shall send a copy of every order passed under this section to the Commissioner of Customs and the other party to the appeal.
(4) Save as otherwise provided in Section 130 or Section 130E, orders passed by the Appellate Tribunal on appeal shall be final.
Section 129C. Procedure of Appellate Tribunal.(1) The powers and functions of the Appellate Tribunal may be exercised and discharged by Benches constituted by the President from amongst the members thereof.
(2) Subject to the provisions contained in Sub-section (4), a Bench shall consist of one judicial member and one technical member.
(4) The President or any other member of the Appellate Tribunal authorised in this behalf by the President may, sitting singly, dispose of any case which has been allotted to the Bench of which he is a member where
(a) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under Section 125, or
(b) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or
(c) the amount of fine or penalty involved, does not exceed ten lakhs rupees.
(5) If the members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority; but if the member are equally divided, they shall state the point or points on which they differ and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other members of the Appellate Tribunal and such point or points shall be decided according to the opinion of the majority of these members of the Appellate Tribunal who have heard the case, including those who first heard it.
(6) Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own procedure and the procedure of the Bench thereof in all matters arising out of the exercise of its powers or of the discharge of its functions, including the places at which the Benches shall hold their sittings.
(7) The Appellate Tribunal shall, for the purposes of discharging its functions, have the same powers as are vested in a Court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely:
(a) discovered and inspection;
(b) enforcing the attendance of any person and examining him on oath;
(c) compelling the production of books of account and other documents; and
(d) issuing commissions.
(8) Any proceeding before the Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 and for the purpose of Section 196 of the Indian Penal Code (45 of 1860), the Appellate Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
Section 129D. Powers of Committee of Chief Commissioner of Customs or Commissioner of Customs to pass certain orders.(1) The Committee of Chief Commissioners of Customs may, of its own motion, call for and examine the record of any proceeding in which a Commissioner of Customs as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Commissioner or any other Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Committee of Chief Commissioners of Customs in its order.
(2) The Commissioners of Customs may, of his own motion, call for examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority to apply to the Commissioner (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Commissioner of Customs in his order.
(3) The Committee of Chief Commissioners of Customs or the Commissioners of Customs, as the case may be, shall, where it is possible to do so, make order under Sub-section (1) or Sub-section (2), within a period of six months, but not beyond a period of one year, from the date of the decision or order of the adjudicating authority.
(4) Where in pursuance of an order under Sub-section (1) or Sub-section (2), the adjudicating authority or any officer of customs authorised in this behalf by the Commissioners of Customs, makes an application to the Appellate Tribunal or the Commissioner (Appeals) within a period of three months from the date of communication of the order under Sub-section (1) or Sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the Commissioner (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of Sub-section (4) of Section 129A shall, so far as may be, apply to such application.
(5) The provisions of this section shall not apply to any decision or order in which the determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment of any duty is in issue or is one of the points in issue.
Explanation.For the purposes of this Sub-section, the determination of a rate of duty in relation to any goods or valuation of any goods for the purposes of assessment of duty includes the determination of a question
(a) relating to the rate of duty for the time being in force, whether under the Customs Tariff Act, 1975 (51 of 1975), or under any other Central Act providing for the levy and collection of any duty of customs, in relation to any goods on or after the 28th day of February, 1986; or
(b) relating to the value of goods for the purposes of assessment of any duty in cases where the assessment is made on or after the 28th day of February, 1986; or
(c) whether any goods fall under a particular heading or sub-heading of the First Schedule or the Second Schedule to the Customs Tariff Act, 1975 (51 of 1975), or that any goods are or not covered by a particular notification or order issued by the Central Government granting total or partial exemption from duty; or
(d) whether the value of any goods for the purposes of assessment of duty shall be enhanced or reduced by the addition or reduction of the amounts in respect of such matters as are specifically provided in this Act.
Section 129DA. Powers of revision of Board or Commissioners of Customs in certain cases.(1) The Board may, of its own motion or on the application of any aggrieved person or otherwise, call for and examine the record of any proceeding in which a Commissioner of Customs has passed any decision or order [not being a decision or order passed under Sub-section (2) of this section] of the nature referred to in Sub-section (5) of Section 129D for the purpose of satisfying itself as to the correctness, legality or propriety of such decision or order and may pass such order thereon as it thinks fit.
(2) The Commissioners of Customs may, of his own motion or on the application of any aggrieved person or otherwise, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order of the nature referred to in Sub-section (5) of Section 129D for the purpose of satisfying himself as to the correctness, legality or propriety of such decision or order and may pass such order thereon as it thinks fit.
(3) (a) No decision or order under this section shall be made so as to prejudicially affect any person unless such person is given a reasonable opportunity of making representation and if, he so desires, of being heard in his defence.
(b) Where the Board or, as the case may be, the Commissioner of Customs is of the opinion that any duty has not been levied or has been short-levied or short-paid or erroneously refunded, no order requiring the affected person to pay any duty not levied or paid, short-levied or short-paid or erroneously refunded shall be passed under this section unless such person is given notice within the time limit specified in Section 28 to show cause against the proposed order.
(4) No proceedings shall be initiated under Sub-section (1) or Sub-section (2) in respect of any decision or order after the expiry of a period of six months from the date of communication of such decision or order:
Provided that in respect of any decision or order passed before the commencement of the Customs and Central Excises Laws (Amendment) Act, 1988, the provisions of this Sub-section shall have effect as if for the words 'six months', the words 'one year' were substituted.
(5) Any person aggrieved by any decision or order passed under Sub-section (1) or Sub-section (2) may appeal to the Customs and Excise Revenues Appellate Tribunal established under Section 3 of the Customs and Excise Revenues Appellate Tribunal Act, 1986 (62 of 1986), against such decision or order.
Section- 129DD. Revision by Central Government.(1) The Central Government may, on the application of any person aggrieved by any order passed under Section 128A, where the order is of the nature referred to in the first proviso to Sub-section (1) of Section 129A, annul or modify such order:
Provided that the Central Government may in its discretion, refuse to admit an application in respect of any order where the amount of duty or fine or penalty, determined by such order does not exceed five thousand rupees.
Explanation.For the purposes of this Sub-section, "order passed under Section 128A includes an order passed under that section before the commencement of Section 40 of the Finance Act, 1984, against when an appeal has not been preferred before such commencement and could have been, if the said section had not come into force, preferred after such commencement, to the Appellate Tribunal.
(1A) The Commissioner of Customs may, if he is of the opinion that an order passed by the Commissioner (Appeals) under Section 128A is not legal or proper, direct the proper officer to make an application on his behalf to the Central Government for recision of such order.
(2) An application under Sub-section (1) shall be made within three months from the date of the communication to the applicant of the order against which the application is being made:
Provided that the Central Government may if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the aforesaid period of three months, allow it to be presented within a further period of three months.
(3) An application under Sub-section (1) shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf and shall be accompanied by a fee of,
(a) two hundred rupees, where the amount of duty and interest demanded, fine or penalty levied by an officer of customs in the case to which the application relates is one lakh rupees or less;
(b) one thousand rupees, where the amount of duty and interest demanded, fine or penalty levied by an officer of customs in the case to which the application relates is more than one lakh rupees:
Provided that no such fee shall be payable in the case of an application referred to in Sub-section (1A).
(4) The Central Government may, of its own motion, annual or modify any order referred to in Sub-section (1).
(5) No order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value shall be passed under this section,
(a) in any case in which an order passed under Section 128A has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value, and
(b) in any other case, unless the person affected by the proposed order has been given notice to show cause against it within one year from the date of the order sought to be annulled or modified.
(6) Where the Central Government is of opinion that any duty of customs has not been levied or has been short-levied, no order levying or enhancing the duty shall be made under this section unless the person affected by the proposed order is given notice to show cause against it within the time limit specified in Section 28.
Section 129E. Deposit, pending appeal, of duty and interest demanded or penalty levied.Where in any appeal under this chapter, the decision or order appealed against relates to any duty and interest demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty and interest demanded or the penalty levied:
Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue:
Provided further that where ah application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty and interest demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing.
Section 130. Appeal to High Court.(1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law.
(2). The Commissioner of Customs or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this Sub-section shall be
(a) filed within one hundred any eighty days from the date on which the order appealed against is received by the Commissioner of Customs or the other party;
(b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party;
(c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved.
(3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(4) The appeal shall be heard only on the question so formulated and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this Sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.
(5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit.
(6) The High Court may determine any issue which
(a) has not been determined by the Appellate Tribunal; or
(b) has not been determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in Sub-section (1).
(7) When an appeal has been filed before the High Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges.
(8) Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall, then, be heard upon that point only by one or more of the other Judges of the High Court and such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.
(9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) relating to appeals to the High Court shall as far as may be, apply in the case of appeals under this section.
6. After hearing the learned Counsel for the parties and after going through the aforesaid provisions contained in the Act, we find that an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after July 1, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law.
7. From the aforesaid provisions it is clear that all the orders passed in appeal by the Appellate Tribunal on or after July 1, 2003 which are not an order as mentioned above in the first bracket can be challenged by way of an appeal to the High Court provided such appeal involves a substantial question of law.
8. As pointed out above, Section 129E of the Act casts a duty upon the appellant to deposit with the proper officer, the duty and interest demanded or penalty levied, if the decision or order appealed against relates to any duty and interest demanded in respect of goods which are not under the control of the Customs Authorities or any penalty levied under the Act. The first proviso to the said section gives power to the Tribunal to dispense with such deposit subject to such condition as the Appellate Tribunal may think fit if it is of the opinion that the deposit of duty or interest demanded or penalty levied would cause undue hardship to the appellant.
9. From a plain reading of the aforesaid two provisions of the Act, we find that an order dispensing with the deposit of the amount or refusing to do so, does not come within the exceptions mentioned in Section 130 of the Act and, therefore, any order either exercising discretion in favour of the appellant or against the appellant in the matter of deposit of the amount can be successfully challenged by way of an appeal under Section 130 of the Act provided substantial question of law is involved in such appeal.
10. We are unable to accept the contention of Mr. Basu that only the final order in terms of Section 129B of the Act can be challenged by way of an appeal under Section 130 of the Act. If that was the intention of the legislature, it would not have incorporated the phrase "every order passed in appeal by the Appellate Tribunal not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for the purpose of assessment" in Section 130 of the Act.
11. The language employed in Section 130 of the Act makes it abundantly clear that it is not necessary that only the final order passed by the Tribunal should be appealable under Section 130 of the Act.
12. We now propose to deal with the decisions cited by Mr. Basu.
13. In the case of Punjab Paint, Colour and Varnish Works and Anr. v. Customs, Excise and Gold (Control) Appellate Tribunal and Anr. (supra), a writ application was moved before the Allahabad High Court challenging the order of the Tribunal by which the Tribunal refused to exercise its discretion in favour of the writ petitioner in the matter of granting exemption from depositing the amount which was the subject-matter of appeal before the Tribunal. A Single Judge of the Allahabad High Court was of the view that such order as an interlocutory order and even after dismissal of such application. The writ petitioner could file a fresh application before the Tribunal claiming fresh exemption. After holding so, the learned Single Judge refused to entertain the writ application against such order. By relying upon the said decision, Mr. Basu wanted to convince us that the order refusing to dispense with the necessity of depositing the amount was an interlocutory order and as such, no appeal will be maintainable before this Court in terms of Section 130 of the Act. It appears from the said decision that the learned Single Judge was only considering whether His Lordship would entertain the writ application against the said interlocutory order and in refusing to entertain such writ application. His Lordship was of the view that even after dismissal of such application, fresh application would be maintainable before the Tribunal. We are unable to follow the second branch of proposition laid down in the said decision. Once an application is dismissed on merit, second application on the self-same ground is not at all maintainable. In the said decision, the question whether an appeal was maintainable or not was not the subject-matter as at that point of time, the new Section 130 of the Act providing appeal before this Court was not available. We, thus, find that the said decision cannot be of any help to Mr. Basu's client.
14. In the case of Indotex Machinery Works v. Assistant Collector of Central Excise and Anr. (supra), the Madras High Court was considering a question whether the decision given by a Tribunal on the question of depositing the amount as condition precedent of hearing of an appeal would operate as res judicata and whether a second application is maintainable claiming dispensation although an earlier application was rejected. Since such questions not involved in this appeal, we refrain from making any comment on such question. The said decision, therefore, does not assist Mr. Basu's client.
15. In the case of Maruti Udyog Ltd. v. Union of India (supra), the Division Bench of the Delhi High Court was considering a writ application under Article 226 of the Constitution of India preferred against an order of the Tribunal passing a direction for deposit some amount in terms of Section 35F of the Central Excise Act, 1944. By relying upon the said decision, Mr. Basu wanted to impress upon us that a writ application is really maintainable against such order and according to him, if appeal was the appropriate remedy, the Delhi High Court would not have gone into the merit of such dispute. We are, however, of the view that the said decision had no occasion to consider the new Section 130 of the Act and as such, the said decision does not help us in resolving the dispute involved before us.
16. In the case of Commissioner of Income-tax and Anr. v. Income-tax Appellate Tribunal and Anr. (supra), the Andhra Pradesh High Court was considering a writ application challenging an order by which the Tribunal reviewed its ear her order. In that context, the Division Bench held that a reference lay from an order under Section 254(1) or final orders made under Section 254(2) of the Income-tax Act, 1961. In the latter case, according to the Division Bench, the order which might be the subject-matter of a reference under Section 256(1) will only be an order passed by the Tribunal amending its earlier order rectifying the mistake brought to its notice by the assessee or the assessing officer. Finality is attached, the Division Bench proceeded, only to orders disposing of appeal under Section 254(1) or orders amending such appellate orders in exercise of the power of rectification under Section 254(2). According to the said High Court, an order passed on a miscellaneous application though passed under Section 254(2) deciding to recall its previous order and to post the matter afresh for hearing, was not an order from which a reference could be made under Section 256 of the Act. We fail to appreciate how the said decision can be of any assistance in interpreting the scope of the new Section 130 of the Act.
17. In the case of Munna Lal and sons (supra), the Division Bench of the Allahabad High Court was considering the scope of reference under Section 66 (1) of the Indian Income-tax Act, 1922. In that context, it was held that there could be only one order under Section 33(4) of the Act and that was the final order; all other orders previously passed by it will be the interlocutory orders and could not be said to be orders on the section of 33(4). According to the said Bench it was the final order on appeal that could be said to be an order in terms of Section 33(4) of the Act and such order would be the subject-matter of reference under Section 66(1) of the Act. In our opinion, the provisions contained in Section 66(1) of the said Act cannot be of any assistance in interpreting Section 130(1) of the Act we are concerned.
18. In the case of Shaw Wallace and Co. Ltd. (supra), a learned Single Judge of this Court was considering a writ application preferred against an order passed by the Tribunal in appeal under the provisions of the Income-tax Act, 1961. According to the learned Single Judge, the Tribunal could not recall the entire order and, therefore, such order was passed without jurisdiction and in such a situation, alternative remedy was no bar in entertaining a writ application under Article 226 of the Constitution of India. We are of the view that the said decision cannot have any application to the fact of the present case as in the said decision the learned Single Judge had no occasion to consider the scope of an appeal under Section 130 of the Customs Act.
19. For the self-same reason, we are of the opinion that the decision of the Allahabad High Court in the case of Collector of Central Excise reported in 1987 (32) ELT 642 cannot assist us in resolving dispute involved herein.
20. In the case of Tata Cummins Ltd. v. Commissioner of Customs, CUSTA 1 of 2002, disposed of by a judgment delivered by a Division Bench of this Court on March 2, 2006, the question before the Division Bench was whether an order passed by the Tribunal refusing to condone delay could be said to be one within the purview of Section 129B of the Act so as to maintain a reference under Section 130A of the Act as it stood earlier. While considering such question, the Division Bench held that such an order was amenable to reference under Section 130A of the Act. In our view, the said decision cannot be a guiding factor for considering the scope of Section 130 of the Act newly incorporated providing appeal to this Court against orders passed by the Tribunal.
21. We, therefore, find that the decisions cited by Mr. Basu do not help his client in anyway.
22. We, thus, find no merit in the preliminary objection raised by Mr. Basu.
23. Let the matter now be placed before the appropriate Bench for hearing on merit."
Prabuddha Sankar Banerjee, J.
24. I agree.
Later:
Xerox certified copy of this judgment be made available to the parties. If applied for, and compliance of usual formalities, by Monday next.