Statutory deeming fiction can extend appellate remedies further; maintainability upheld, but stay was refused on the facts.

A statutory deeming provision that requires a departmental application to be heard as if it were an appeal, and applies the appellate provisions of the Act so far as may be, was read to extend to the further appellate stage as well; the Tribunal therefore treated an appeal under Section 35B as maintainable against the Collector (Appeals)' order. The contrary view was rejected as creating an anomaly and cutting off the connected appellate chain without clear legislative exclusion. Interim relief was declined because the demand was relatively small, the applicants showed adequate financial capacity, and the asserted time-bar was not established at the stay stage.

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Issues: (i) Whether an appeal lay to the Appellate Tribunal under Section 35B against an order of the Collector (Appeals) passed on an application under Section 35E(4) of the Central Excises and Salt Act; (ii) Whether the stay application should be granted.

Issue (i): Whether an appeal lay to the Appellate Tribunal under Section 35B against an order of the Collector (Appeals) passed on an application under Section 35E(4) of the Central Excises and Salt Act.

Analysis: Section 35E(4) deems the departmental application to be heard by the Collector (Appeals) as if it were an appeal and applies the appeal provisions of the Act so far as may be. Reading the provision with the appellate scheme of Chapter VIA, the Tribunal held that the deeming fiction extends to the further appellate stage as well. The contrary view would create an anomaly by making the Collector (Appeals)' order final in this class of cases, unlike other cases under the Act, and would be inconsistent with the principle that a suit, appeal, and second appeal form one connected proceeding. The dissenting member held that the right of appeal must exist in the statute expressly and that Section 35B does not list such orders.

Conclusion: By majority, the appeal was held maintainable before the Tribunal under Section 35B.

Issue (ii): Whether the stay application should be granted.

Analysis: The demand was for a comparatively small amount, and the applicants' financial position showed substantial turnover and available funds. The contention that the entire demand was time-barred was not established on the record at the stay stage.

Conclusion: The stay application was rejected and deposit of the demanded amount was directed within the stipulated time.

Final Conclusion: The order affirmed the maintainability of the appeal but declined interim relief, leaving the appellants to comply with the deposit direction or face the consequences under the Act.

Ratio Decidendi: Where a statutory deeming provision directs that an application be heard as if it were an appeal and applies the appellate provisions of the Act, the connected further appellate remedies may also extend to the resulting order unless the statute clearly excludes them.

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