Harish Tandon, J. - (1.) THE common questions of law are involved in the above writ petitions firstly, whether an appeal shall lie to the High Court from every order passed by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment) disposing of an application, allowing or refusing the dispensation of deposit under Section 129E of the said Act; secondly the writ petition is maintainable if the order passed by the Appellate Tribunal does not involve the substantial question of law. Chapter -XV of the Customs Act which deals with the appeals contains Sections 128 to 131A providing the right of an appeal and the procedure and powers incidental thereto. Section 128 of the said Act creates a right on any person aggrieved by a decision or order passed under the said Act by an officer of the Customs lower in rank than the Commissioner of Customs to the Commissioner (Appeals). Section 128A of the said Act is a procedural provision regulating the said appeal filed before the Commissioner (Appeals). Section 129 relates to the constitution of the Appellate Tribunal to be called the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) by the Central Government and the constituents thereof. Section 129A provides for an appeal to the Appellate Tribunal against the decision of an order passed by the Commissioner of Customs as an adjudicating authority; order passed by the Commissioner Appeals; order passed by the Board or the Appellate Commissioner of Customs before the appointed date and an order passed by the Board or the Commissioner of Customs either before or after the appointed date. The said provision put a fetter in deciding an appeal against an order passed by the Commissioners (Appeals) if it relates to any goods imported or exported at baggage or the goods loaded in conveyance for importation into India but not unloaded at the place of destination in India either full or the short quantity or the payment of drawback. Section 130 further provides for an appeal before the High Court from every order passed in an appeal by the Appellate Tribunal on or after the 1st day of July, 2013 if the High Court is satisfied that the case involved a substantial question of law. Every order does not include an order relating, among other things, to the determination of any question having relation to the rate of duty of customs or to the value of goods for the purposes of assessment as those orders are amenable to be challenged directly before the Supreme Court under Section 130E(b) of the said Act. Section 129E of the said Act envisaged the deposit of a duty and interest demanded in respect of the goods in any appeal preferred under the said chapter. The first proviso thereto bestowed the power upon the Appellate Tribunal or Commissioner (Appeals) to dispense with such deposit if it would cause undue hardship to the appellant keeping in mind to safeguard the interest of revenue.
(2.) ONE of the contention raised in this writ petition by the respondents is that the order disposing of an application for dispensation of the condition of deposit as enshrined under Section 129E of the said Act is capable of being challenged in an appeal under Section 130 of the said Act. The expression 'every order appearing under Section 130 of the said Act' can not have a restricted meaning so as to include the final order only but imbibed within itself the interlocutory order, meaning thereby, an order passed by the Appellate Tribunal or the Commissioner (Appeals) while disposing of an application for dispensation of pre -deposit condition envisaged under Section 129E of the said Act. In support of the aforesaid contentions, the reliance is placed upon a division bench judgment of this Court in case of Ambika & Anr. v. Commissioner of Customs (Port) reported in : 2007 (3) CHN 625. It is, however, submitted by the petitioner that the appeal under Section 130 of the said Act is a conditional one, inasmuch as, it is maintainable only if it involves substantial question of law. The petitioner further contends that the right of an appeal, if not defined, the order can be assailed in a writ jurisdiction under Article 226 of the Constitution of India. In support of the aforesaid contentions, the petitioner placed reliance upon an unreported judgment of this Court in case of M/s. Kamala Metachem & Ors. v. Commissioner of Customs (Port), Kolkata & Ors. (WP No. 919 of 2006 decided on 25 -4 -2007) and another unreported judgment of the Division Bench in case of M/s. Lumno Industries Ltd. v. Commissioner of Central Excise, Haldia Commissionerate (CEXA No. 9 of 2013 decided on July 3, 2013) [since reported in : 2014 (304) E.L.T. 533 (Cal.)], a Division Bench judgment of the Delhi High Court in Union of India v. Classic Credit Ltd., reported in : 2009 (236) E.L.T. 12 (Delhi) : 2009 (13) S.T.R. 598 (Del.).
(3.) IN case of M/s. Kamala Metachem (supra), the co -ordinate bench was dealing the identical matter where an order disposing of an application for dispensation of the pre -deposit of the duty and interest was involved. The Court has not ruled that an order passed under Section 129E of the said Act is not amenable to be challenged in an appeal under Section 130 of the said Act but held that the appeal to the High Court is not automatic but the conditional one that it involves a substantial question of law in these words: "An appeal to the High Court is, therefore, not automatic. The condition precedent for entertaining an appeal is the satisfaction of the High Court of the case involving a substantial question of law. An order under section 129E of the Customs Act, 1962, dispensing with disputed duty and/or penalty either fully, or in part, or refusing to do so is generally based on assessment of facts and may or may not involve any question of law, far less, any substantial question of law. An appeal may lie to the High Court from an order of the Tribunal waiving pre -deposit of the disputed duty and/or penalty either wholly or in part or refusing to waive pre -deposit, if the order is based on a finding which gives rise to a substantial question of law." ******** ********* An order of CESTAT dismissing an appeal under Section 129E of the Customs Act, 1962 whether on the ground of non deposit of the disputed duty or penalty or on the ground of the same being barred by limitation for any other reason would amount to affirmation of the order under appeal. An order dismissing an appeal could therefore, be appealable to the High Court, if the appeal involved a substantial question of law.";