JUDGMENT : Dinesh Mehta, J. I.A. No.1/2019 1. By way of the present application, the appellant has sought amendment in the memo of appeal while enclosing a copy of the order in original dated 25.05.2016. 2. According to the applicant, due to inadvertence he could not place the order in original dated 25.05.2016 on record. A leave has also been sought to place the same on record, while seeking requisite amendment in the memo of appeal. 3. The application is allowed. 4. The document dated 25.05.2016 so also the amended memo of appeal are taken on record. D.B. Central excise Appeal No. 26/2018 5. The present appeal under Section 35-G of the Central Excise Act has been filed, calling in question the order dated 31.10.2017 passed by the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi (hereinafter referred to as the ‘CESTAT’ or the ‘Tribunal’), whereby the appeal filed by the appellant has been dismissed as not maintainable. 6. The precise facts are that the Commissioner of Central Excise, Jodhpur passed an order dated 25.05.2016 imposing a penalty of Rs.10,000/- upon the appellant, as the appellant being owner of truck No. RJ-19-1G-5474, was found engaged in transportation of the excisable goods despite having reason to believe that the same were liable for confiscation. 7. Feeling aggrieved of the penalty order aforesaid, the appellant preferred an appeal before the CESTAT, which was registered as Appeal No.E-50079/2017. 8. When the aforesaid appeal along with other connected appeals involving the identical issue of penalty came up for consideration before the members of the Tribunal, they declined to entertain the appeals relying upon clause (ii) of the second proviso to Section 35-B of the Central Excise Act, 1944; as the amount of penalty involved in each of the appeal was less than Rs.2,00,000/-. 9. Mr. Jagat Tatia, learned counsel for the appellant highlighting that the order dated 25.05.2016 impugned in the appeal before the Tribunal was passed by the Commissioner as an adjudicating authority, contended that second proviso to Section 35-B was not applicable in the present case. He argued that the Tribunal has fallen into apparent error of law in rejecting appellant’s appeal as not maintainable. 10. Mr. He argued that the Tribunal has fallen into apparent error of law in rejecting appellant’s appeal as not maintainable. 10. Mr. Falgun Buch on the other hand meekly submitted that though strictly speaking clause (ii) of the second proviso to Section 35-B was not attracted, but looking to the spirit of the provision of the Act, if the Tribunal has rejected the appeal as not maintainable, this Court need not entertain the present appeal as no substantial injustice has been caused to the appellant, more particularly as the amount of penalty (Rs.10,000/-) is negligible. Considering the rival submissions and going through the relevant statutory provisions, we are of the opinion that the following substantial question of law arises for our consideration: (i) Whether in the facts and circumstances of the case, learned members of the Tribunal were legally justified in rejecting the appellant’s appeal, while applying clause (ii) of the second proviso to Section 35-B of the Central Excise Act, 1944? 11. Though the controversy at hands lies in a narrow compass but it has wide span/applicability and even wider repercussions and the same is likely to affect many appeals that are pending or likely to come before the Tribunal. Hence, with the consent of rival counsels, we proceed to embark on adjudication of above question of law. 12. The fact that the appeal before the Tribunal was against an order passed by the Commissioner of Central Excise as an adjudicating authority was not dependent upon any scrutiny or deliberation; as the opening part of the order of the Tribunal itself records that the subject appeals had been filed against the order in original dated 25.05.2016, passed by the Commissioner of Central Excise Jaipur II. Hence, at least this factual position was clear to the Tribunal that the appeal before it was an appeal under clause (a) of sub-section (1) of Section 35-B of the Act. 13. Hence, at least this factual position was clear to the Tribunal that the appeal before it was an appeal under clause (a) of sub-section (1) of Section 35-B of the Act. 13. Now we proceed to consider the relevant provision of Section 35B of the Act of 1944, which are being reproduced hereinfra for ready reference :- “35-B. Appeals to the Appellate Tribunal – (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order - (a) a decision or order passed by the Principal Commissioner of Central Excise or Commissioner of Central Excise as an adjudicating authority; (b) an order passed by the [Commissioner (Appeals)] under section 35-A; (c) an order passed by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) (hereafter in this Chapter referred to as the Board) or the [Appellate Commissioner of Central Excise] under section 35, as it stood immediately before the appointed day; (d) an order passed by the Board or the Principal Commissioner of Central Excise or Commissioner of Central Excise, either before or after the appointed day, under section 35-A, as it stood immediately before that day: Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to,- (a) a case of loss of goods, where the loss occurs in transit from a factory to a warehouse or to another factory, or from one warehouse to another, or during the course of processing of the goods in a warehouse or in storage, whether in a factory or in a warehouse; (b) a rebate of duty of excise on goods, exported to any country or territory outside India or on excisable material used in the manufacture of goods which are exported to any country or territory outside India; (c) goods exported outside India (except to Nepal or Bhutan) without payment of duty; (d) credit of any duty allowed to be utilised towards payment of excise duty on final products under the provisions of this Act or the rules made thereunder and such order is passed by the Commissioner (Appeals) on or after the date appointed under section 109 of the Finance (No.2) Act, 1998: Provided further that the appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where- (i) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (ii) the amount of fine or penalty determined by such order, does not exceed[two lakh rupees].” 14. Learned members of the Tribunal have taken resort to second proviso to Section 35-B of the Act to reject the appellant’s appeal, in purported exercise of their discretion of not admitting the appeal, as the penalty in question was less than Rs.2,00,000/-. 15. There cannot be any two opinions that the appeal before the Tribunal was against the order of the Commissioner of the Central Excise, as an Adjudicating Authority. That is why learned counsel appearing for the revenue conceded this factual position. 16. That being the fact-scenario, para (ii) of second proviso to Section 35-B does not apply, which is essentially meant to cover the cases referred in clause (b), clause (c) or clause (d) of subsection (1) of Section 35-B of the Act. 17. As far as the appeal before the Tribunal is concerned, the same was indisputably within the ambit of clause (a) of subsection (1) of Section 35-B of the Act, which reads thus:- A decision order passed by the Member of Central Excise or Commissioner of Central Excise as Adjudicating Authority. The term Adjudicating Authority has been defined under clause (a) of Section 2 of the Act of 1944 as under:- “[(a) “adjudicating authority” means any authority competent to pass any order or decision under this Act, but does not include the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), [Commissioner of Central Excise (Appeals)] or Appellate Tribunal;]” 18. The Commissioner of Central Excise has passed the impugned order dated 25.05.2016 as an Adjudicating Authority does not require any deliberation, inasmuch as it is the first order, captioned as order in original. 19. We unhesistently hold that clause (ii) of second proviso to Section 35-B is not applicable in the present case and hence regardless of the fact that the quantum of penalty being subject matter of the appeal before the Tribunal was less than Rs.2,00,000/-; the Tribunal did not have discretion to refuse to admit the appeal and non-suit the appellant, by holding its appeal as not maintainable. 20. The impugned order dated 31.10.2017 passed by the Tribunal being contrary to the unequivocal statutory provision, deserves to be quashed and set aside; which we hereby do. 21. 20. The impugned order dated 31.10.2017 passed by the Tribunal being contrary to the unequivocal statutory provision, deserves to be quashed and set aside; which we hereby do. 21. The appeal is allowed; the question of law is answered in negation, the order dated 31.10.2017 passed by the Tribunal is thus anulled; and the appeal of the assessee is restored back to the dockets of the Tribunal to be decided on its merit, in accordance with law.