R.M.Sahai, D.S.Sinha, JJ. - (1.) THE short question of law that arises for consideration in this petition directed against the order of revising authority who dismissed the revision filed by petitioner as not maintainable is whether a revision lies against an appellate order passed under the provisions of U.P. Sugar Cane (Purchase Tax) Act 1961. Section 3B is extracted below: - - The Cane Commissioner, in the case of a factory, and the Sugar Commissioner or any other Officer, not below the rank of Assistant Sugar Commissioner authorised by the Sugar Commissioner in this behalf in the case of an unit, may, in order to satisfy himself as to the legality or propriety of any order passed by an assessing authority under this Act, call for and examine either on his own motion or on the application of the assessees or the State Government, to be made within six months of the date of the order, the record of any proceeding of assessment and pass such orders as he may think fit. Provided that no such application shall be entertained at the instance of a party which has a right of appeal but does not avail of it. Provided further that no enhancement shall be made under this section unless the assessee has been afforded a reasonable opportunity of being heard against the enhancement. A revision under this section lies to the Commissioner against an order passed by assessing authority. If the section would have stood as it could be urged that the revision lay and the order passed by the Commissioner could have been maintained. But a bare perusal of the proviso leaves no room for doubt that no revision at instance of a party could be entertained unless the party filed an appeal first. Therefore, even though the principal clause does not confer any right of revision against an appellate order but the proviso which debars a person from filing a revision unless an appeal has been filed necessarily creates a right of revision in favour of a party only if he has filed an appeal. Although proviso, normally is deemed to be an exception but it may be an independent clause also. In the context in which it has been used it has to be construed as a clause conferring right of revision on that party alone which has filed appeal. The order of the opposite parties, therefore, dismissing the revision cannot be maintained.
(2.) IN the result this petition succeeds and is allowed. The order dated 10th January, 1979, copy of which has been filed as Annexure 10 to the writ petition, is quashed. The revising authority is directed to decide the revision afresh in accordance with law. The parties shall bear their own costs.;