( 2 ) SUPER Tailors, the respondent herein is a partnership firm carrying on tailoring business since 1985. The Inspector of the Appellate Corporation who conducted the statutory inspection of the respondent-establishment found that it was employing 12 persons on wages and was using power for the purpose of running the sewing machines for stitching and also for ironing the clothes after stitching. The Inspector prepared a list of persons working in the premises during his visit indicating the names of the employees, designation, their salaries, etc. It was signed by one of the partners of the firm. Accordingly, the appellant passed an order holding that the establishment was covered under the purview of the Act w. e. f. 14-9-1993 and hence a Code No. 53-11705-19 was allotted to the respondent-firm. The respondent challenged the coverage of the establishment by filing an application under Section 75 of the ESI Act before the ESI Court, hubli, in ESI Appln. No. 1 of 1994 for determining that the persons working for the applicant firm on piece rate work are not employees within the meaning of the ESI Act and that the respondent is not liable to pay the employees' contribution. After assessing the evidence, the ESI court passed an order dated 30-9-1997 under Section 75 of the Act allowing the application and declaring that the applicant firm is not covered under the ESI Act and the same is not liable to pay employees' contribution. Being aggrieved by that order, the ESI Corporation preferred this appeal.

( 3 ) THE learned Counsel for the appellant has vehemently argued that the ESI Court has committed an error in holding that the application is maintainable notwithstanding the fact that the respondent has not approached the ESI Corporation under Section 45 of the Act. He also submitted that the finding or interpretation of the Court with regard to the use of electric power was contrary to Section 2 (12) of the ESI Act. Further, the Court is not justified in applying the law laid down as in Sudershan Weaving Factory, Amritsar v Employees' State Insurance corporation and Another, to the facts of the case. Therefore, he submitted that the appeal may be allowed and the impugned order be set aside.

( 4 ) PER contra, the learned Counsel for the respondent has painstakingly argued that there is no substantial question of law involved in this appeal and the appeal is not maintainable under section 82 of the ESI Act. She also submitted that the findings recorded by the ESI Court are only on questions of fact and therefore, it cannot be gone into by this Court. She also contended that the evidence adduced by the appellant is insufficient to hold that the respondent-firm is covered under the ESI Act. The ESI Corporation has passed an order under Section 45-A of the act. Therefore, the question of approaching the ESI Corporation under Section 45 does not arise. For the foregoing reasons, she submitted that the appeal is liable to be dismissed.

( 5 ) IN view of the above arguments, the first question that arises for consideration is as to whether the application filed under Section 75 of the Act is maintainable.

( 6 ) THE contention of the learned Counsel for the appellant is that the ESI Corporation has not passed any order directing the respondent to pay the amount. Therefore, it was always open to the respondent to approach the appellant-corporation and place materials to dispel the findings on the basis of the report of the Inspector to avoid coverage. At the outset, the appellant who was respondent before the ESI has not specifically pleaded in the objection statement that since the respondent did not approach the appellant under Section 45 of the Act, the application is not maintainable. But very vaguely it is stated that the application is not maintainable. Under those circumstances, it is not open to the appellant to contend that the application filed before the ESI court is not maintainable. In the notice Ex. R-2 it