Interlocutory excise ruling not appealable where no final liability was determined under the statutory appeal provision.

The majority in CEGAT held that a Collector's preliminary ruling on whether normal production under Rule 173E had to be determined before issuing show cause charges was not appealable under Section 35B of the Central Excises and Salt Act, 1944. Because the order did not decide duty demand, confiscation, penalty, or the assessee's final liability, it was treated as an interlocutory determination rather than an adjudicatory order passed in the required statutory capacity. The mere fact that an appeal had been permitted could not create a right of appeal where the statute did not confer one. The appeal was therefore held not maintainable; the dissent viewed the ruling as finally deciding a jurisdictional objection and appealable.

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Issues: Whether the Collector's order deciding, as a preliminary matter, that determination of normal production under Rule 173E was not mandatory before issuing the charges in the show cause notice was an appealable order under Section 35B of the Central Excises and Salt Act, 1944.

Analysis: The majority held that the impugned order did not adjudicate the duty demand, confiscation or penalty proposed in the show cause notice, and did not finally determine the liability of the assessee. It was treated as a preliminary or interlocutory determination on maintainability of the charges, not as an order passed by the Collector as an adjudicating authority in the sense required by Section 35B(1)(a). The appeal right under Section 35B was held to be confined to decisions or orders passed in adjudicatory capacity, and the mere fact that the Collector permitted an appeal could not create a statutory right where none existed.

Conclusion: The appeal was held not maintainable and was rejected.

Dissenting Opinion: The dissenting Member held that the Collector's ruling finally determined the preliminary jurisdictional objection and therefore possessed the trappings of finality. On that view, the order was passed during adjudication and as an adjudicating authority, so an appeal under Section 35B lay to the Tribunal. On the merits, the dissent further held that the challenge to the show cause notice failed and the appeal deserved rejection.

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