TMI Blog2013 (12) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been one order meaning final order - But that is not the intention of the Legislature because unless there is appeal, there cannot be any application for dispensation of pre- deposit, as the application of this nature is not independent one unlike when the application is made for dispensation of service of notice under section 80 of the Code of Civil Procedure at the time of filing of the suit against amongst other Government, as this application is an independent of suit not in the suit - the scheme of the provision is that one has to prefer an appeal first and then in connection therewith application for pre-deposit is to be made - Pre- condition of hearing of appeal is either pre-deposit or dispensation thereof either whole or part t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mong other things, to the determination of any question having a relation to the rate of duty of excise 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. In support of his submission he has stated that recently Madras High Court has held in an unreported decision that this sort of an order is an appealable order and writ petition is not maintainable. Learned counsel for the writ petitioner replies that this order was passed on an application for dispensation of pre-deposit and it was not an order passed in the appeal. Reading the language plainly, of the aforesaid section, it will appear that the appealable order contemplated therein are orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uffer from any of the defects as above. Here the question is whether Section 35G of the said Act affords alternative remedy or not. While reading carefully the language of the aforesaid section, we notice from the words "every order passed in appeal". It contemplates number of orders, not one or singular, and passing of the same is possible on several issues and problems in connection with appeal. Obviously interlocutory proceedings are contemplated to be filed. This is why Legisture has used the word "in appeal" not "on appeal". If it were so then in our opinion it would have been one order meaning final order. But that is not the intention of the Legislature because unless there is appeal, there cannot be any application for dispensatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Tribunal" would include even an interim order is the question, which, the petitioner seeks this Court to answer in negative." It is further held in paragraph No.40 as follows: " . We are unable to appreciate their contentions for the simple reason that the phrase "any order passed by the Appellate Tribunal" has to have the same meaning as given by the Apex Court in Raj Kumar Shivhare's case ." In paragraph No.80, the Bench concluded as follows: " .Thus, by considering all the above facts and circumstances, we answer the reference as follows" The order passed by the CESTAT in terms of Section 35F of the Central Excise Act, 1944 or Section 129-E of the Customs Act, 1962 is appealable in terms of Section 35G of the Excise Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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