AI Drafter 
TaxTMI 
TaxTMI 
1985 (11) TMI 229
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....d paise sixty four only); (ii) a notice of demand-cum-show cause dated 3-11-1981 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 Rs. 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 t....
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....ribunal); (vii)  appeal No. 615/85-A was the sequel. 3.  The crucial issue for a determination of the question of maintainability of the instant appeals is as to whether 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 rej....
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....sed and such dismissal cannot be but under Section. 128-A (3); [reliance upon the observation of the Bench in para 7 of 1985 (19) E.L.T. 83- International Computers Indian Manufacturers Ltd. v. Collector of CE, Bombay]; (c) Shri R.K. Jain, intervening, urged that- (i) while it 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 r....
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....ter case referred to supra, that "Such deposit may be dispensed with by the Tribunal if satisfied that it would cause undue hardship to the Appellant-subject to such conditions as to security that may safeguard the interests of the Revenue"; (b)  to an identical effect are the decisions of the Tribunal in 1985 E.L.T. 83 [International Computers 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....
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....d an order dismissing it as time barred is one made in appeal; (iii)  Section. 31 is the only provision relating to the hearing and disposal of appeals and if an order dismissing an appeal on the bar of limitation is one passed in appeal, it must fall within Section. 31, regardless of whether the appellate authority bad or had not condoned the delay in filing an appeal in terms of Section. 30 (2); (iv)  since Section. 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 ....