2012 (11) TMI 962 - HC - Central Excise

Court emphasizes adherence to statutory processes, dismisses writ challenging tribunal order.

The Court dismissed the writ petition challenging the order of the Customs, Excise & Service Tax Appellate Tribunal, emphasizing adherence to ... Maintainability of writ petition against appellate tribunal order - appeal to High Court under Section 35G on substantial question of law - interim/deposit order as an order passed in appeal - availability of alternative statutory remedy - prima facie case and undue hardship in waiver of pre-depositMaintainability of writ petition against appellate tribunal order - appeal to High Court under Section 35G on substantial question of law - interim/deposit order as an order passed in appeal - availability of alternative statutory remedy - prima facie case and undue hardship in waiver of pre-deposit - Whether the writ petition challenging the Tribunal's order directing deposit and granting conditional waiver of pre-deposit is maintainable or the petitioner must seek remedy under the statutory appellate forum under Section 35G/35F of the Central Excise Act, 1944. - HELD THAT: - The Court held that Section 35G, which permits appeal to the High Court on a substantial question of law, is analogous to Section 35 of FEMA and must be given effect so that orders of the Appellate Tribunal (including orders made in appeal and interim orders) are amenable to statutory appeal. The Supreme Court's reasoning in Rajkumar Shivhare was applied to conclude that 'every order passed in appeal by the Appellate Tribunal' is appealable and that litigants should not bypass the statutory appellate remedy by invoking writ jurisdiction. The impugned order directing deposit and providing conditional waiver was an order passed in appeal and, therefore, subject to the statutory remedy. Questions of prima facie case and undue hardship relevant to waiver of pre-deposit are merits issues for the appellate forum; absence of their consideration does not render the writ maintainable where an alternative efficacious statutory remedy exists. No exceptional circumstance was shown to justify extraordinary interference by writ jurisdiction. [Paras 12, 13, 15, 17, 18]The writ petition is not maintainable and is dismissed; the petitioner must pursue remedy before the statutory appellate forum under the Act.Final Conclusion: The High Court dismissed the writ petition for lack of maintainability, holding that the impugned Tribunal order directing deposit and granting conditional waiver is an order in appeal subject to statutory remedy under Section 35G/35F of the Central Excise Act, 1944, and that merits issues such as prima facie case and undue hardship must be considered by the appellate forum. Issues:Challenge to order of Customs, Excise & Service Tax Appellate Tribunal for deposit amount. Interpretation of sections 35F, 35G of the Act, 1944. Maintainability of writ petition for judicial review. Consideration of prima facie case and undue hardship. Alternative statutory forum for redressal.Analysis:The petitioner sought quashing of an order directing deposit of Rs. 1 crore by Customs, Excise & Service Tax Appellate Tribunal, with waiver of balance duty and penalty pending appeal. The petitioner contended that waiver of pre-deposit involves factual aspects, not substantial question of law. Respondent argued for alternative statutory remedy under law. The Tribunal's order was challenged based on interpretation of sections 35F, 35G of the Act, 1944.The Court examined the provisions of sections 35F, 35G of the Act, 1944, analogous to section 35 of the FEMA, emphasizing appeal to High Court on substantial question of law. Citing precedent, the Court highlighted the legislative intent for statutory appeal process, discouraging bypassing of appellate tribunals for writ jurisdiction. The Court clarified the scope of appeal against any order of the Tribunal, whether interim or final, as per the wording of the statute.Regarding the consideration of prima facie case and undue hardship, the Court noted these aspects as merit-based issues, suggesting recourse to statutory forums for redressal. The Court emphasized the availability of appellate mechanisms for addressing grievances related to pre-deposit and penalty, rather than seeking direct judicial review through writ petitions. The dismissal of the writ petition was based on lack of exceptional circumstances warranting deviation from statutory appeal procedures.In conclusion, the Court found the writ petition not maintainable against the impugned order, emphasizing the need to adhere to statutory appellate processes for addressing legal issues. No exceptional circumstances were identified to justify deviating from established legal avenues for redressal. The Court dismissed the writ petition without costs, underscoring the importance of following statutory frameworks for legal remedies.