High Court allows writ petition despite appeal option, directs Tribunal to hear appeal, ensures justice

The High Court held that despite the availability of an appeal under Section-35G(2) of the Act, a writ petition was maintainable as it was filed within the limitation period. The court overruled the objection raised by the Central Excise Department and directed the Tribunal to hear the appeal on its merits. The petitioner, who had initially failed to deposit the pre-condition amount, later deposited the entire excise duty demanded during the proceedings. The High Court's decision aimed at ensuring justice by setting aside the Tribunal's orders and providing directions for a timely hearing of the appeal.

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Issues: Jurisdiction of High Court in entertaining writ petition despite availability of appeal under Section-35G(2) of the Act, validity of pre-condition for entertaining appeal set by Tribunal, delay in depositing pre-condition amount, recall application rejection, deposit of entire excise duty during pendency of writ petition, setting aside Tribunal orders, directions for Tribunal to hear appeal on merits.

The judgment by the High Court dealt with the jurisdiction of the court in entertaining a writ petition despite the availability of an appeal under Section-35G(2) of the Act. The Central Excise Department raised a preliminary objection, arguing that the writ petition was not maintainable as an appeal should have been filed instead. The court, after perusing the provision, held that the petitioner cannot be nonsuited for not filing the appeal, especially when the appeal would have been dealt with by the same High Court and bench. Additionally, since the writ petition was filed within the limitation period of 180 days from the Tribunal's order, the objection raised by the department was overruled.

The case involved a situation where the Customs, Excise & Service Tax Appellate Tribunal had directed the petitioner to deposit a sum of Rs. 1 lac within a specified period as a pre-condition for entertaining the appeal. The petitioner deposited the amount after the prescribed period, leading to the dismissal of the appeal by the Tribunal. Despite a recall application being rejected, the High Court considered the fact that the petitioner had deposited the entire excise duty demanded during the pendency of the writ petition, amounting to Rs. 3,30,000. The court, in the interest of justice, decided that the appeal of the petitioner should be heard on merits by the Tribunal, setting aside the Tribunal's orders and directing the appellate tribunal to decide the appeal within six months from the date of the court's order.

In conclusion, the High Court's judgment clarified the jurisdictional aspect of entertaining a writ petition over an appeal, addressed the validity of pre-condition set by the Tribunal for entertaining the appeal, considered the delay in depositing the pre-condition amount, and emphasized the importance of hearing the appeal on its merits, especially after the petitioner had deposited the entire excise duty demanded during the legal proceedings. The court's decision to set aside the Tribunal's orders and provide directions for the Tribunal to hear the appeal on merits within a specified timeframe aimed at ensuring justice and proper adjudication of the matter.

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