Maintainability under Section 35B of the Central Excise Act was upheld where the order did not fall within the proviso.

An appeal under Section 35B of the Central Excise Act, 1944 is maintainable unless the impugned order falls within the statutory proviso excluding appellate jurisdiction. Following an earlier Division Bench view on the same controversy, the High Court held that the Tribunal erred in treating the appeal as incompetent because the order appealed against did not fall within the proviso. The dismissal for want of maintainability was therefore unsustainable, the Tribunal's order was set aside, and the matter was restored for decision on merits in accordance with law.

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Issues: Whether the appeal before the Appellate Tribunal was not maintainable under Section 35B of the Central Excise Act, 1944 and therefore liable to be dismissed.

Analysis: The appeal turned on the scope of Section 35B of the Central Excise Act, 1944 and its proviso. The Court followed an earlier Division Bench view on the same controversy and held that the Tribunal's conclusion that the appeal was incompetent was erroneous. The order appealed against did not fall within the proviso to Section 35B.

Conclusion: The Tribunal was not justified in dismissing the appeal as not maintainable under Section 35B of the Central Excise Act, 1944.

Final Conclusion: The appeal succeeded, the Tribunal's order was set aside, and the matter was restored to the Tribunal for decision on merits in accordance with law.

Ratio Decidendi: An appeal is maintainable under Section 35B of the Central Excise Act, 1944 unless the impugned order falls within the statutory proviso excluding appellate jurisdiction.

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