ORDER
P.S. Bajaj, Member (J)
1. This appeal has been preferred by the appellants against the impugned order dated 23-6-2002 vide which the learned Commissioner, as adjudicating authority, has in compliance with the directions of the Hon’ble Allahabad High Court’s order dated 24-5-2002, disposed of the request of the appellants regarding the supply of non-relied upon and other documents.
2. The learned SDR, at the very out-set, has raised a preliminary objection about the maintainability of the appeal. He has contended that the order passed by the Commissioner as adjudicating authority is only an interim order vide which he has disposed of the representations and requests made by the appellants through various letters for supply of documents relied upon and non-relied upon. No final adjudication so far has been made by the Commissioner.
3. The learned counsel for the appellants, on the other hand, has simply contended that the appeal is maintainable as the order has not been passed in accordance with the direction of the Hon’ble Allahabad High Court which was given in writ petition filed before that court, by the appellants.
4. We have heard both the sides and gone through the record.
5. From the record, we find that the show cause notice dated 13-12-2001 was served on the appellants wherein evasion of duty of Rs. 93,32,359.64 was alleged on account of clandestine clearance of the finished goods during the period December, 1998 to July, 1999 and penalty on the appellant company as well as its two directors was proposed to be imposed. All the relied upon documents were supplied to the appellants which were received by them on 14-12-2001. They were directed to file reply to the show cause notice. However, the appellants instead of filing reply, requested for release of non-relied upon documents and also computer peripherals and further requested for print out of the information contained in those peripherals. The representative of the appellants along with the computer expert even appeared before the authority for getting the alleged data as contained in the seized computer peripherals namely, zip drive, floppy and hard disc.
6. Thereafter, the appellants filed a writ petition before the Allahabad High Court seeking direction to the adjudicating authority for supply of the documents and materials, as prayed for by them through the different letters/representations. The Hon’ble High Court vide order dated 24-5-2002 only directed the adjudicating authority to dispose of the objections raised by the appellants within two weeks through reasoned order.
7. The Commissioner had passed the impugned order wherein he had given the detailed reasons while disposing of the requests and representations/objections of the appellants and directed the appellants to file reply to the show cause notice within 15 days and also offered them an opportunity of personal hearing.
8. The order passed by the Commissioner on the face of it is interlocutory order. As per direction of the Hon’ble High Court, he has disposed of all the pending representations/requests and objections of the appellants regarding the supply of non-relied documents/relied documents and other materials. No adjudication of the show cause notice has been so far made by the Commissioner. Being a pure interlocutory order, in our view, is not appealable under Section 35B of the Act. The ‘order’ or decision referred to in the said section means the final order or the decision and not an interim order. It could not be even the intention of the Legislature to provide appeal against an interim order of the adjudicating authority, otherwise, no adjudicating authority will be able to adjudicate upon the show cause notice finally against the assessee within a reasonable time, as the assessee will keep on filing the appeals before the Tribunal against each and every interim order passed by that authority, during the adjudication proceedings. The expression ‘order’ or decision used in Section 35B of the Act, therefore, has to be restricted to the final order or decision passed by the adjudicating authority against which an appeal can be preferred by the aggrieved party before the Tribunal.
9. Even an interim order passed by the Tribunal or by the Commissioner (Appeals) under Section 35F in respect of pre-deposit of duty/penalty amount, has been held to be not appealable. In this context reference may be made to Bhushan Industrial Co. (P) Ltd. v. CCE, Chandigarh – 1984 (18) E.L.T. 538 wherein it has been so observed and ruled that stay on order can be challenged only by way of a writ petition in the higher court. That being so, we do not find any sufficient ground or reason to take a different view in respect of an interim order passed by the adjudicating authority regarding supply of the documents sought for by the assessee, during adjudication proceedings. The observations of the Apex Court in Patheja Bros. Forgings & Stamping and Anr. v. I.C.I.C.I. Ltd. and Ors. – JT 2000 (8) SC 252, referred to by the counsel, are not of any help to the appellants in this case. In that case, it has been only observed that when the words are clear, those must be given effect.
10. In view of the discussions made above, the appeal of the appellants against the impugned interim order of the Commissioner as adjudicating authority, is not maintainable under Section 35B of the Act and the same is ordered to be dismissed.