COMMR. OF CUS. (IMPORT) Vs. INDERPAL SINGH GUJRAL

JUDGEMENT

(1.) IN this application filed by the department (Appellant), the prayer is to stay the operation of the impugned order, which is an interim order passed by the Commissioner (Appeals) on 18 -11 -2010 in an appeal filed by the Respondent against Order -in -Original No. 7303/2010 dated 22 -9 -2010 passed by the Additional Commissioner of Customs in adjudication of show -cause notice dated 7 -5 -2010.

(2.) FOR the record, we have to state that the Respondent moved the Hon'ble High Court for implementation of the impugned order and that the Hon'ble High Court vide Order dated 10 -2 -2011 in Writ Petition No. 1311 of 2011 directed that the order dated 18 -11 -2010 of the Commissioner (Appeals) be implemented unless the department obtained stay of the said order from this Tribunal within a period prescribed by the Hon'ble High Court. We are told that the department is today before us within the prescribed period.

(3.) THE impugned order, on its face, says that it is an interim order. Both sides agree that the appeal filed by the Assessee before the Commissioner (Appeals) against 'Order -in -Original' dated 22 -9 -2010 is pending. Hence, there could be No. doubt that the Order -in -Appeal against the same is an interim order of the Commissioner (Appeals) and not an order within the meaning of Section 128A(3) of the Customs Act, 1962. Under Section 129A of the Act, an appeal shall lie to this Tribunal against an order passed by the Commissioner (Appeals) under Section 128A. The impugned order is not one such order. It is not a final order passed under Section 128A(3) of the Act, nor is it claimed by the learned JDR that it is an order passed under some other provision of Section 28A. If that be so, it is to be held that the present appeal of the Commissioner against an interim order passed by the Commissioner (Appeals) is not maintainable. The appeal is dismissed as not maintainable.