TMI Blog1985 (2) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... ollows -There was an order passed by the Deputy Collector of Customs, Madras (4th appellant herein) on 21-12-1972, under Section 14(1)(a) of the Customs Act, Against that order, the respondent filed an appeal to the Appellate Collector (second appellant). That appeal was, however, rejected as barred by limitation on 24-4-1974. Thereafter, the respondent filed a revision petition, calling it a review petition, to the Central Board of Excise and Customs (the 1st appellant). The first appellant rejected the same on 25-7-1975 on the ground that since the original order had merged with the appellate order, the revision could not be entertained. A against the said order, the respondent filed the writ petition. The learned Single Judge, who heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise its powers of revision in this case, as the appellate authority has passed an order in the appeal filed under Section 128. The question is whether the two contentions advanced by the learned Counsel for the appellants could be accepted as tenable. 4. So far as the first question as regards the application of the doctrine of merger is concerned, it is seen that, in this case, the respondent has no doubt filed an appeal against the order passed by the original authority to the appellate authority. But the appellate authority did not entertain the appeal, but rejected the same on the ground that it had been filed out of time. Thus, there is no effective appeal before the appellate authority against the order of the original authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Section. 130, will exclude all orders passed in appeal under Section. 128 and as, in this case, an order has been passed by the appellate authority under Section. 128, no revision should be entertained by the Board under that Sectiontion directly against the order of the original authority. For the purpose of appreciating the said contention, we have to consider the scope and ambit of S. 130(1) of the Customs Act, which is as follows - "Section. 130 (1) : Any person aggrieved by any decision or order passed under this Act may, within three months from the date of the communication to him of such decision or order - (a) where the decision or order has been passed by a Collector of Customs, appeal to the Board; (b) where the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpression of "an order passed in appeal under Section 128". An order could be taken to have been passed in appeal. under Section. 128, only if the appellate authority has passed an order .either concnfirming, modifying annulling the decision or order appealed against. An order dismissing an appeal as out of time cannot be said to be an. order passed under Section. 128. No doubt, even an order rejecting an appeal may be construed as an order passed under Section. 128, for the .appellate authority has no other power except the power Conferred under Section. 128; when it rejects the appeal as time barred; but that will not be an order in appeal filed under Section. 128, for an Order-in-Appeal can only mean an appellate order on merits. Since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4(2) (b) of the Tamil Nadu General Sales Tax Act, 1959 was considered. That decision also contained an exclusion in respect of orders which have been made the subject of an appeal. There also, it was held that where a petition to condone the delay in filing an appeal is rejected by the Tribunal and the appeal is also rejected in limine, it cannot be said that the order has been made the subject of an appeal to the Appellate Tribunal, within the meaning of Section. 34(2)(b) of the Act. 7. A Full Bench of this court, again in Arunachalam Pillai and Sons v. State of Tamil Nadu - 45 STC 109 FB, had to consider the scope of suo motu powers of revision contained in Section. 32 of the Tamil Nadu General Sales Tax Act, 1959. Section. 32 conferred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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