2010 (3) TMI 411 - HC - Central Excise

Deposit order under Section 35F appealable as an order made in appeal. Pursue statutory remedy.

INDOWORTH INDIA LTD. Versus CESTAT, MUMBAI

The Court held that the deposit order under Section 35F of the Central Excise Act, 1944, is appealable under Section 35G as it is considered an order made ... Appeal to High Court- whether the order directing a party to deposit the amount before the Appellate Tribunal is an order made in appeal and if the answer is in the affirmative, whether an appeal lies under Section 35G of the Central Excise Act, 1944. Held that- there is no hesitation in holding that an order directing the deposit of the amount is an order made in appeal. Section 35F opens with the words “where in any appeal under this Chapter”. The order of deposit is thus an order made in appeal. In fact there is no other proceeding pending before the appellate authority. Issues:Challenge to order passed by Appellate Tribunal under Section 35F of Central Excise Act, 1944 regarding deposit of duty amount. Preliminary objection raised on tenability of petition based on availability of appeal under Section 35G. Interpretation of Section 35F and Section 35G to determine if order for deposit is an appealable order.Analysis:The petitioner contested an order by the Appellate Tribunal under Section 35F of the Central Excise Act, 1944, mandating a deposit of half the duty amount, totaling Rs. 4 crores. The respondent raised a preliminary objection citing Section 35G, which allows appeals from orders passed by the Appellate Tribunal. Reference was made to a Madras High Court judgment emphasizing statutory remedies over writ petitions. The petitioner argued that the deposit order is not an order passed in appeal but a pre-condition for appeal filing, thus not falling under Section 35G. Sections 35F and 35G were examined to determine the appealability of the deposit directive.The Court deliberated on the language of Section 35F and Section 35G. Section 35F mandates deposit pending appeal, while Section 35G allows appeals from orders passed by the Appellate Tribunal. The Court concluded that the deposit order qualifies as an order made in appeal, as it is an essential step before appealing and no separate proceedings exist for deposit issues. Therefore, the deposit directive is deemed appealable under Section 35G of the Central Excise Act, 1944.In light of the above analysis, the Court found that the petitioner possesses an alternative remedy against the impugned order and declined to entertain the petition. Consequently, the writ petition was dismissed, with a directive to refrain from dismissing the petitioner's appeal before the CEGAT for two weeks from the judgment date.