TaxTMI 
TaxTMI 
2013 (5) TMI 656
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing to pre-deposit of duty/penalty pending the appeals. 2. The writ petitions are filed despite their being a provision for appeal under Section 35-G relating to the Excise Act and Section 130 in relation to the Customs Act, stating that the orders under challenge passed by the CESTAT are not orders passed in the appeals, but only interlocutory orders in terms of Section 35-F of the Excise Act and Section 129-E of the Customs Act and, therefore, writ petitions under Article 226 of the Constitution of India are maintainable. 3. The above said contention is repelled and objected to by the Revenue stating that as against such interlocutory orders, appeals would lie and in this regard reliance is placed on a decision of the Supreme Court in Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement, (2010) 4 SCC 772, wherein in paragraph (18) it was held as under: "18. The argument that under Section 35 only appeals from final order can be filed has been advanced on a misconception of the clear provision of the section itself. The section clearly says that from "any decision or order" of the Appellate Tribunal, appeal can be filed to the High Court on a question of l....
X X X X Extracts X X X X
X X X X Extracts X X X X
....J. declined to entertain a writ petition on the ground that an appeal alone will lie. The relevant portion of the said order reads as under: "4. ...... Section 35F under which the order for deposit has been directed to be made reads as follows: "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 penalty levied:- Provided..........." Now considering aforesaid two provisions the question arises as to 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. We have 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1. We are also not very convinced that in respect of an order of this nature, an appeal under Section 130A can be maintained before the High Court, which is only in a situation where the appeal involves examination of a substantial question of law which is decided erroneously by the Tribunal. ..." vi. A Division Bench of the Kerala High Court comprising C.N.Ramachandran Nair and K.Surendra Mohan, JJ. in Mohd. Fariz and Co. v. Commissioner of Customs, 2010 (260) ELT 29 (Ker.), while taking up an appeal against the order passed by the CESTAT dismissing an application for condonation of delay filed along with the appeal, was of the view that an order rejecting an appeal after dismissing an application filed for condonation of delay is not an order in appeal against which an appeal would lie to the High Court under Section 130 of the Customs Act. vii. A Division Bench of the Bombay High Court comprising J.P.Devadhar and R.M.Savant, JJ. in Videocon Industries Ltd. v. Commissioner of Customs, Aurangabad, 2011 (263) ELT 28 (Bom.), while considering an appeal filed against an order of pre-deposit passed by the CESTAT, after formulating the question of law as follows: "Whether on t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Judgment dated 24.6.2011 in C.M.A.No.1613 of 2011), while dealing with an appeal filed against the order passed by the CESTAT on an application seeking waiver of pre-deposit on service tax, declined to entertain the appeal on merits, and observed as follows: "7. ..... That apart, this being a discretionary order in nature and requires only a prima facie consideration on merits of the case, none of the substantial questions of law raised in the appeal could be considered and, consequently, the appeal could be entertained. 8. Accordingly, the civil miscellaneous appeal fails and the same is dismissed. Consequently, connected miscellaneous petition is also dismissed. As the time given by the Tribunal for pre-deposit of Rs.20 Lakhs expired on 13th June, 2011, the said time is extended for a further period till 15th July, 2011." The Division Bench did not think it fit to entertain the appeal on merits. ix. On the contrary, in Arafaath Travels Pvt. Ltd. v. Union of India and others (Order dated 3.12.2010 made in W.P.No.25638 of 2010), by relying upon the decision of the Supreme Court in Raj Kumar Shivhare, supra, Chitra Venkataraman,J. directed the Registry to convert the wri....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....Xavier Felix, learned Standing Counsel for the respondents that a number of cases writ petitions are filed challenging the orders of the CESTAT passed in interlocutory applications in terms of Section 35-F of the Excise Act or Section 129-E of the Customs Act and in many occasions disposed of by the writ Court on merits. In some cases, there has been a direction to file appeal. It is also stated that very recently writ petitions in W.P.Nos.6245 and 6246 of 2013 have been entertained by a Bench of this Court, wherein the orders of CESTAT relating to pre-deposit were challenged. 7. Considering the manner in which the interlocutory orders passed by the CESTAT have been dealt with by different Courts and the number of writ petitions that have already been filed and pending before this Court, I am of the considered opinion that some clarity is required as to whether an appeal would lie against the order passed by the CESTAT under Section 35-F of the Excise Act or Section 129-E of the Customs Act. 8. This issue assumes importance in the light of the decisions of this Court directing the writ petitions to be converted into Civil Miscellaneous Appeals by placing reliance on Raj Kuma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be - (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; ECTION [130. Appeal to High Court. - (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2) The Commissioner of Customs or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be - (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Customs or the other....
X X X X Extracts X X X X
X X X X Extracts X X X X
....has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1). (7) When an appeal has been filed before the High Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges. (8) Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall, then, be heard upon that point only by one or more of the other Judges of the High Court and such point shall be decided according to the opinion of the majority of (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which- (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1). (7) When an appeal has been filed before the High Court, i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....der passed on merits in the appeal. In my opinion, the interlocutory order passed under Section 35-F of the Excise Act or Section 129-E of the Customs Act considers only prima facie case and undue hardship and the CESTAT is entitled to balance the interest of the assessee and the Revenue. The main issue raised in the appeal is not decided one way or other and, therefore, it can at best be an interlocutory order not touching upon the merits of the appeal. The Acts provide for interlocutory remedy pending the appeal. The order in appeal passed under Section 35-C of the Excise Act or Section 129-B of the Customs Act goes into the merits of the contentions raised and the claim of the assessee is determined on facts by the Tribunal, which is the highest forum to assay the facts. Therefore, the statute provides for an appeal by formulating substantial questions of law. This distinction is not there in FEMA, 1999. As earlier pointed out, the statutory provisions should be considered in the light of that particular statute, vide K.T.M.S.Mohd. and another v. Union of India and others, AIR 1992 SC 1831 : (1992) 3 SCC 178. 12. It is to be noticed that there is no provision in the FEMA, 199....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cessary. (1A) The Appellate Tribunal may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (2) The Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Central Excise or the other party to the appeal:- Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard. (2A) The Appellate Tribunal shall, where it is possible to do so, hear and decide every appeal within a period of three years from the da....