TaxTMI 
TaxTMI 
2012 (11) TMI 962
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....to deposit an amount of Rs. 1 crore within a period of 12 weeks from the date of the order and report compliance on 25.01.2012 and subject to the said deposit, the pre-deposit of the balance amount of duty and the entire amount of penalty shall stand waived and its recovery stayed during pendency of the appeal. The petitioner further seeks a direction to the Tribunal to reconsider the stay application/waiver of pre-deposit application. 2. The facts, in brief, as projected by the petitioner are that the petitioner company is a limited comply incorporated under the provisions of the Companies Act, 1956, engaged in manufacture of Iron and Steel products falling under Chapter 72 of the Schedule to the Central Excise Tariff Act, 1985. The petit....
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....alongwith an application for stay under section 25 of the Act, 1944 before the Tribunal. 3. Shri Shashank Dubey, learned senior counsel with Shri Neelabh Dubey, learned Advocate for the petitioner would submit that section 35G read with Section 35C of the Act, 1944 clearly establishes that only the order on merit can be appeal against before the High Court under section 35G. Section 35G of the Act, 1944 specifically uses the term `if the case involves a substantial question of law. The issue of waiver of pre-deposit under section 35F of the Act, 1944 has a factual aspect to it and in most of the cases does not involve a question of law. It is further submitted that the impugned order is no order on merit. The twin test for waiver of pre-de....
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....r the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary." 6. Section 35F of the Act, 1944 reads as under: "35F. Deposit, pending appeal, of duty demanded or penalty levied.- Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of central excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the pen....
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....y decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law arising out of such order." 9. On bare perusal of section 35G of the Act, 1944 which is analogous to section 35 of the FEMA, as both provides for appeal to the High Court on any question of law, arising out of such order. Section 35G of the Act, 1944 reads that "if the High Court is satisfied that the case involves a substantial question of law". Section 35 of the FEMA reads that "any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court on any question of law arising out of such ....
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.... review under the writ jurisdiction on the ground that there may not be any question of law as required under section 35G of the Act. Sub section (5) and (6) of Section 35G deal with the substantial questions of law. In respect of question of law, which may arise, sufficient prescriptions have been made in sub section (5) and (6) of Section 35G of the Act, 1944. This Court is not expressing any opinion on the involvement of question of law, more so, substantial question of law, as the writ petition is seeking judicial review under writ jurisdiction, which is not maintainable. 12. The question raised by the petitioner that the appeal as contemplated under section 35G of the Act, 1944 is only against the final order, has been negated by th....