JUDGMENT N.K. Mitra, C.J. and S.R. Singh, J.
1. Challenge in the present Special Appeal is focussed on the Judgment and order dated May 3, 1999 passed by the learned single Judge thereby disposing of the writ petition under Article 226 of the Constitution which stemmed from an order dated 31.3.1999 passed by the Commissioner, Customs and Central Excise (Appeals) Ghaziabad. The Commissioner by means of this order passed in exercise of power conferred by Proviso to Section 35F of the Central Excise and Salt Act, 1944 partially waived the condition of pre-deposit of excise duty. The Stamp Reporter opined in his report that in view of Chapter VIII. Rule 5 of the Allahabad High Court Rules, the special appeal was not maintainable. Sri A. P. Mathur counsel appearing for the appellant demurred to the report stating that it did not commend itself to be accepted. Sri Mathur tried to bolster his stand by stating that the appeal is still pending before the appellate authority and the order under challenge before the learned single Judge in his writ petition, was in fact, passed pending appeal under Section 35F of the Central Excise and Salt Act, 1944 and, therefore, the submission proceeded, it was not an order passed in exercise of appellate jurisdiction within the meaning of Rule 5 of Chapter VIII of the High Court Rules.
"35F. Deposit, pending appeal of duty demanded or penalty levied.--Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of central exercise authorities or any penalty levied under this Act. the person desirous of appealing against such decision or order shall pending the appeal deposit with the adjudicating authority the duty demanded or the penalty levied :
Provided that where in any particular case the (Commissioner (Appeals)J or the appellate tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the (Commissioner (Appeals)] or as the case may be the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to Impose so as to safeguard the interests of revenue.
Rule 5 of Chapter VIII of the Allahabad High Court Rules reads as under :
"5. Special appeal--An appeal shall lie to the Court from a judgment (not being a Judgment passed in the exercise of appellate Jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal Jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any Judgment order or award--(a) of a tribunal. Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge."
The submission made by the learned counsel docs not lend Itself for acceptance. It would be evident from Rule 5 extracted above that an appeal shall lie to the Court from a judgment of single Judge not being an order passed in exercise of jurisdiction conferred by Article 226 of Article 227 of the Constitution in respect of any judgment order or award (a) of a tribunal. Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional Jurisdiction under any such Act of one Judge. In the present case clause (b) of Rule 5 is fully attracted inasmuch as the order passed by the Commissioner. Customs and Central Excise (Appeals) Ghaziabad against which the writ petition was preferred had the complexion of an order made in exercise or purported exercise of appellate power. The fact that main appeal is still pending before the Commissioner. Customs and Central Excise (Appeals) Ghaziabad, would not make any difference in that while passing any order of interim nature even if it be an order of exemption under Section 35F of the Central Excise and Salt Act 1944, the Commissioner acts as an appellate authority exercising appellate power. In the circumstance, it would not be necessary to go into the question whether clause (a) of the last part of Rule 5 of Chapter VIII of the High Court Rules, is attracted. The report submitted by the Stamp Reporter merits to be sustained qua the objection made by the learned counsel.
2. As a result of the above discussion, the appeal fails and is dismissed as not maintainable under Chapter VIII. Rule 5 of the Allahabad High Court Rules.