2018 (12) TMI 935 - HC - Central Excise

Court dismisses writ petition challenging tribunal order, emphasizes appeal process.

The High Court dismissed the writ petition challenging the Customs Excise & Service Tax Appellate Tribunal's order, emphasizing that the appeal ... Pre-deposit - It is the case of the petitioner that due to financial constraints, it could not deposit the aforesaid amount of ₹ 25 lacs within the stipulated period - Held that:- This Court cannot lose sight of the fact that an appeal under Section 35G of the Act of 1944 lies against the order of the CESTAT before this Court and the petition under Article 226 of the Constitution of India is not proper remedy. The petitioner having filed an appeal before this Court against the earlier order dated 13.05.2005 of the Tribunal cannot circumvent such course or remedy. The present writ petition laying challenge to the order passed by the CESTAT way back on 07.02.2012, is apparently a subterfuge to overcome the hurdle of limitation which stands expired six years ago - petition not maintainable and is dismissed. Issues:Challenge to order dated 07.02.2012 by Customs Excise & Service Tax Appellate Tribunal; Validity of order dated 26.03.2003 and 23.08.2004; Compliance with deposit requirements; Jurisdiction of Board of Industrial and Financial Reconstruction (BIFR); Maintainability of writ petition.Analysis:The petitioner, a manufacturing company, challenged an order dated 07.02.2012 by the Customs Excise & Service Tax Appellate Tribunal (CESTAT) before the High Court. The initial order dated 26.03.2003 by the Commissioner of Central Excise demanded a significant amount from the petitioner, which was set aside by CESTAT in 2003 due to lack of document supply. However, a subsequent order in 2004 confirmed the duty and penalty, leading to an appeal by the petitioner. The Tribunal directed a deposit of Rs. 25 lacs within eight weeks in 2005, which the petitioner failed to comply with, resulting in the rejection of the appeal in 2005.The petitioner then approached the High Court, which observed the possibility of restoring the appeal if the deposit was made. A subsequent Special Leave Petition was withdrawn, allowing the petitioner to approach the Tribunal. The petitioner later sought relief from the BIFR due to financial difficulties, resulting in an order allowing a deposit of Rs. 25 lacs within two weeks for appeal consideration by CESTAT. However, the petitioner delayed the deposit until June 2010, leading to a dismissal of the appeal recall application by CESTAT in 2012.The High Court emphasized that an appeal under Section 35G of the Central Excise Act lies against CESTAT's order, making the writ petition inappropriate. It noted the attempt to circumvent the appeal process and dismissed the writ petition as not maintainable, considering the limitation period had expired six years ago. The court concluded that the writ petition was a subterfuge to overcome the limitation hurdle, and thus, dismissed it in limine.