An order dispensing with the deposit of the amount or refusing to do so, does not come within the exceptions mentioned in section 130 of the Customs Act and, therefore, any order either exercising discretion in favor of the appellant or against the appellant in the matter of deposit of the amount can be successfully challenged by way of an appeal under section 130 of the Act provided substantial question of law is involved in such appeal.

( 1 ) THIS appeal is directed against the order dated july 14, 2006 passed by the Customs, Excise, and Service Tax Appellate tribunal, Eastern Zonal Bench, Kolkata, in Miscellaneous Application No. 249 of 2006 thereby directing the present appellant to deposit a sum of Rs. 20 lakh in terms of section 129e of the Customs Act (hereinafter referred to as the Act)as condition precedent for hearing an appeal preferred under section 129a of the Act before the Tribunal.

( 2 ) MR. Basu, the learned Counsel appearing on behalf of the customs authority has taken a preliminary objection as regards maintainability of the present appeal under section 130 of the Act on the ground that an order in terms of section 129e of the same is not appealable under section 130 thereof. According to Mr. Basu, only the final order passed in terms of section 129b (1)of the Act can be challenged by way of an appeal under section 130 of the Act. In support of such contention, Mr. Basu relies upon the following decisions passed by different Courts while construing similar provisions contained in different statutes like those mentioned in sections 129a and 130 of the Act: 1]. State of Maharashtra vs. Marwanjee P. Desai and Ors. , reported in AIR 2002 SC 456; 2]. Punjab Paint, Colour and Varnish Works and Anr. vs. Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi and Anr. , reported in 1987 (32) ELT 656 (All.); 3]. Indotex Machinary Works vs. Assistant Collector of Central Excise and anr. , reported in 1987 (28) ELT 265 (Mad.); 4]. Maruti Udyog Ltd. vs. Union of India reported in 1997 (96) ELT 521 (Del.); 5]. Commissioner of Income-tax and Anr. vs. Income-tax Appellate Tribunal and Anr. , reported in 1994 (206) ITR 126 (A. P.); 6]. Munnal Lal and Sons vs. Commissioner of Income-tax, U. P. , reported in 1965 (LV) ITR 508; 7]. Sham Wallace and Co. Ltd. vs. Income-tax Appellate Tribunal and Ors. , reported in 1999 (240) ITR 579; 8]. Tata Cummins Limited vs. Commissioner of Customs (Appeals), CUSTA 1 of 2002 disposed of on March 2, 2006.

( 3 ) MR. Chowdhury, the learned Counsel appearing on behalf of the appellant, has, however, seriously disputed the aforesaid preliminary objection raised by mr. Basu and has contended that all the orders passed by the Tribunal in terms of section 129a of the Act are appealable as would appear from the clear language employed in section 130 of the same. Mr. Chowdhury, therefore, prays for entertaining the appeal and passing an order staying operation of the order impugned herein after overruling the preliminary objection raised by Mr. Basu.

( 4 ) THEREFORE, the preliminary question that arises for determination before us is whether an order directing the appellant to give security in terms of section 129e of the Act can be challenged by preferring an appeal in terms of section 130 of the said Act.

( 5 ) TO appreciate the question involved herein, it will be profitable to refer to the provisions contained in section 129a to section 129e and section 130 of the act which are quoted below: "section 129a. 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 Commissioner of Customs as an adjudicating authority;

(b) an order passed by the Commissioner (Appeals) under section 128a;

(c) an order passed by the Board or the Appellate Commissioner of customs under section 128, as it stood immediately before the appointed day;

(d) an order passed by the Board or the Commissioner of Customs, either before or after the appointed day, under section 130, 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) any goods imported or exported as baggage;

(b) any goods loaded in a