TaxTMI 
TaxTMI 
2013 (11) TMI 240
X X X X Extracts X X X X
X X X X Extracts X X X X
....ngle Judge, the orders of the Customs, Excise and Service Tax Appellate Tribunal (in short Tribunal) made either in interim application for stay or application seeking for dispensation of pre-deposit, were challenged. 2. The Revenue raised a preliminary objection with regard to the maintainability of these writ petitions, by contending that as against those orders passed by the Tribunal, an appeal, either under Section 35G of the Central Excise Act or under Section 130 of the Customs Act, alone is maintainable. The Revenue, in support of such submission, relied on the decision of the Apex Court reported in 2010 (4) SCC 772 ( Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement). The learned counsel for the petitioners argued that writ petition is maintainable and in some cases this Court and other High Courts entertained the writ petitions, though in some cases writ petitions were dismissed on the ground of availability of alternative remedy of filing appeal. 3. The learned Judge, after considering the rival submissions and considering the various decisions rendered by different High Courts, has observed that there is enough confusion in different Courts as t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....30, then the remedy lies to the parties to challenge the same under Article 226 of the Constitution of India. In support of his submissions, he relied on the following decisions:- 1. 1981 (8) ELT 679 (SC) (Navin Chandra Chhotelal Vs. Central Board of Excise &Customs) 2. 2010 (10) SCC 744 (Competition Commission of India Vs. Steel Authority of India Limited and another) 3. 1989 (44) ELT 629 (Excel Rubber Products Vs. Addl. Collector of C.Ex.&Customs) 6. Mr.Aravind P. Dattar, learned Senior Counsel appearing in W.P.No.22077 of 2013 etc., submitted as follows:- Fore more than 25 years, till the decision was made in Raj Kumar Shivare's case, persons aggrieved by the orders passed under Section 35F/129 E viz., pre-deposit orders, have only filed writ petitions before the High Courts, as reference to the High Court was not maintainable. Even after the abolition of reference provision and introduction of appeal provision, writ petitions are being filed. The decision in Raj Kumar Shivhare's case was made in the context of FEMA, 1999. Pre-deposit orders are only interim orders not passed in appeal but in appeal proceedings. Section 35G(1) is the substantive right wher....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Orissa and Others Vs. Krishna Stores) 2. 2003 (8) SCC 50 (State of Gujarat Vs.Salimbhai Abdulgaffar Shaikh and Others) 3. 2007 (6) SCC 769 (Ambica Industries Vs. Commissioner of Central Excise) 4. (1999) 240 ITR 579 Cal (Shaw Wallace and Co., Ltd., Vs. Income Tax Appellate Tribunal and Others) 5. AIR 1967 SC 799 (Central Bank of India Ltd., Vs. Gokal Chand) 6. 2012 (11) SCC 651 (Union of India and Another Vs. Guwahati Carbon Limited) 8. Mr.Joseph Prabakar, learned counsel appearing for some of the petitioners submitted as follows:- Section 35G excludes certain orders which can be appealed against before the Supreme Court. Therefore, final determination is necessary for filing appeal under Section 35G. Six months' time is given under Section 35G for filing an appeal before the High Court. Therefore, pre-deposit orders granting only limited time for compliance cannot fit in within the scope of Section 35G. Even availability of an alternative remedy cannot take away the power under Article 226 of the Constitution of India to entertain a writ petition. In support of his submissions, he relied on the decision reported in 2012 (283) ELT 321 SC (Columbia Sportswe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ral Excise Act, 1944. Chapter II of the Central Excise Act deals with levy and collection of duty. Section 3 to Section 12 of the said Act are placed under Chapter II. Chapter III deals with powers and duties of officers and land holders. Section 12E to Section 23 deal with such powers and duties and are placed under Chapter III. Chapter V deals with Settlement of cases. Section 31 to Section 32P deal with Constitution of Settlement Commission, its jurisdiction and powers etc., Chapter VI deals with adjudication of confiscations and penalties. Section 33 to Section 34A are placed under Chapter VI which deal with power of adjudication and the adjudication procedure etc. Chapter VIA deals with Appeals. Section 35, 35A to 35R and 36 are placed under Chapter VIA. In these cases, as we are concerned only with the appeal procedures and its scope, it is better to analyse those provisions under Chapter VIA of the Central Excise Act in detail. 14. Section 35 contemplates appeals to be filed before the Commissioner (Appeals). Sub-section (1) of Section 35, thus contemplates that any person aggrieved by "any decision or order " passed under the said Act by a Central Excise Officer, lower i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....date appointed under section 109 of the Finance (No.2)Act, 1998. Provided further that the Appellate Tribunal may, in its discretion, refuse, to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where- (i) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (ii) the amount of fine or penalty determined by such order, does not exceed[ fifty thousand rupees] " 16. A perusal of the above provision of law would show that any person aggrieved by any of the orders referred to under sub-section (1), may file an appeal to the Appellate Tribunal . In other words, only those orders or decisions referred to under sub-clauses (a) to ( d) of sub-section (1) can be challenged before the Appellate Tribunal and the appeals are maintainable only against those orders. If original order of adjudication was passed by the Commissioner of Central Excise himself as an adjudicating authority, an appeal is maintainable before....
X X X X Extracts X X X X
X X X X Extracts X X X X
....olves any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment or not; difference in duty or duty involved, or amount of fine or penalty involved or value of goods involves, as the case may be. 9. i. Description and classification of goods ii. Period of dispute iii. Amount of duty, if any, demanded for the period mentioned in item (i) iv. Amount of refund, if any ,claimed for the period mentioned in item (ii) v. Amount of fine imposed vi. Amount of penalty imposed vii. Market value of seized goods. 10. Whether duty or penalty is deposited; if not, whether any application for dispensing with such deposit has been made. (A copy of the challan under which the deposit is made shall be furnished). 11. Whether the appellant wishes to be heard in person? 12. Reliefs claimed in appeal. Statement of facts Grounds of appeal Signature of the authorised Representative, if any Signature of the appellant. Verification I,...............................................the appellant, do hereby declare that what is stated above is true to the best of my information and belief. Verified....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... purpose" also. 20. Section 35C deals with the nature of the orders to be passed by the Appellate Tribunal and the same is extracted hereunder:- 35C. Orders of Appellate Tribunal. (1) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being, heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer 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." Though Section 35C contemplates the passing of pass final orders by the Tribunal, a perusal of Section 35B (7) would further show that the Tribunal is to pass orders on interim applications also. Therefore, it cannot be contended that only the order passed under Section 35C are the orders passed by the Tribunal which alone can be appealed against. Section 35B(7) reads thus:- Section 35B:- ......... ............ .......... (7) Even application made before the Appellate Tribunal, (a) in an appeal for grant of stay or for r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....be made "pending the appeal" as found under Section 35F, it does not mean or can be construed that such deposit can be filed at any time after filing the appeal and during its pendency. Even though the phrase "pending the appeal" is used under Section 35F, a conjoint reading of Section 35B (6) contemplating of filing the appeal in the prescribed form, Rule 6 of the Central Excise (Appeals) Rules 2001 contemplating the Form in which the appeal has to be filed and Form No.E.A-3 more particularly, Sl.No. 10 of the same requiring deposit of such duty or penalty along with appeal, would show that the said deposit of duty or penalty has to be made either before filing the appeal or along with the appeal and not any time after filing of the appeal. Thus, the phrase "pending the appeal" used under Section 35F is to be taken to mean that such deposit has to be made either before or atleast along with the appeal . If no such deposit is made, then the appellant has to file an application for dispensing with such deposit and he has to necessarily state as to whether any such application is filed as required under Sl. No. 10 of the Form No. E.A.3. 23. No doubt, the first proviso to Section 3....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1944 and Section 130 of the Customs Act, 1962. Both these provisions of law deal with appeal to High Court from the order of the Appellate Tribunal. Before discussing the above said provisions, let us also examine the scope of appeal under the Customs Act, 1962. 25. Unlike The Central Excise Act, 1944, The Customs Act, 1962, contains as many as 161 sections. For limited purpose of considering the issue on hand, we can straight away go to Chapter XV of the said Act which deals with Appeals and Revision. Section 128 deals with Appeals to Commissioner (Appeals). The said provision is similar to that of Section 35 of the Central Excise Act, 1944. Section 129A deals with appeals to the Appellate Tribunal. The above said provision is similar to that of Section 35B of the Central Excise Act. Section 129B deals with the nature of orders to be passed by the Appellate Tribunal. This again is exactly identical to that of Section 35C of the Central Excise Act. Section 129E deals with deposit of duty and interest demanded or penalty levied pending the appeal. This again is similar to that of Section 35F of the Central Excise Act. Section 130 deals with Appeal to High Court as against the ord....
X X X X Extracts X X X X
X X X X Extracts X X X X
....estion 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, 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 the Judges who have heard the case including those who first heard it. (9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... language used in a particular provision of law is without having any meaning for the same. The Full Bench of this Court in the decision reported in 2013 (5) CTC 225 (K.Arockiyaraj Vs. The Chief Judicial Magistrate, Srivilliputhur and another) in which one of us (N.Paul Vasanthakumar,J.) was a party has decided the issue based on the language used in Section 14 (1) of the SARFAESI Act, 2002 that is as to whether the Chief Judicial Magistrate in Non-Metropolitan areas can exercise the power of Chief Metropolitan Magistrate, or District Magistrate alone can exercise such power in Non-Metropolitan areas. After considering various decisions of the Apex Court, the Full Bench at paragraph 34 has held as follows:- "34. The literal interpretation is to be given if the words in the statute are clear and unambiguous and the object of the enactment should be borne-in-mind while interpreting the statute. .." In conclusion, the Full Bench held that in terms of the statutory provision in Non-Metropolitan areas the Chief Judicial Magistrate cannot be approached and the competent authority is the District Magistrate or his delegate. 29. Further, in Raj Kumar Shivhare case , the Apex Court....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... ,1999 Section 35G of Central Excise Act and Section 130 of Customs Act would further make it clear that the scope of filing appeal before the High Court against the order of the Appellate Tribunal passed in Appeal, is further widened or enlarged by providing sub-section (2) of 35G and Section 130 of Central Excise Act and Customs Act respectively. It is pertinent to note at this juncture that no such sub-section (2) is available under Section 35 of FEMA, 1999. For proper appreciation of the intention of the legislation, it is better to have comparative look of the relevant Sections 35, 35G and 130 of the FEMA, Central Excise Act and Customs Act which are extracted hereunder :- FEMA, 1999 THE CENTRAL EXCISE ACT, 1944 THE CUSOTMS ACT, 1962 35. Appeal to High Court - Any person aggrieved by any 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: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....appeal is filed by the other party; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (2A) The High Court may admit an appeal after the expiry of the period of one hundred and eighty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved (2A) The High Court may admit an appeal after the expiry of the period of one hundred and eighty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period. (3) Where the High C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 ofhe majority of the Judges w decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. (9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section. opinion of the majority of the Judges who have heard the case including those who first heard it. (9) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section. 32. From a careful perusal of the above provisions of law, it would make it clear without any ambiguity that sub-section (2) of both....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Court in the appeal preferred under Section 35G or 130 is to be confined only with the substantial questions of law raised and not on facts or any other aspect. 35. One more important aspect that has to be noted at this juncture is that under both the enactments, there is no specific bar for filing an appeal against the interim orders passed by the Tribunal. More specifically, either Section 35F of Central Excise Act or Section 129E of the Customs Act does not specifically prohibit the parties from challenging the orders passed by the Tribunal in their application for waiver of pre-deposit . On the other hand, as we found supra, sub-section (2) of Section 35G as well as Section 130 of the respective Acts, specifically permits filing of appeal against any order passed by the Appellate Tribunal . 36. Keeping these position of law and principles in our mind, let us now proceed to consider the contentions of the respective parties. 37. The core contention of the petitioners is that as against the interim order passed by the Tribunal, there is no appeal provision provided before the High Court under the Central Excise Act, 1944 and Customs Act, 1962. According to them, what is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rt in Raj Kumar Shivhare's case. For better appreciation, we can straight away refer the findings rendered by the Apex Court in Raj Kumar Shivhare's case. 41. At this juncture, we make it very clear that though the said decision is rendered in respect of a dispute arising out of FEMA 1999, it is needless to say that the interpretation given in the above said decision in respect of the phrase "any decision or order" of the Appellate Tribunal has to be applied, without any hesitation, to the appeal provisions under the subject matter enactments viz., Central Excise Act and Customs Act also. The ratio laid down in the above case would certainly apply in respect of the cases covered under Central Excise Act and Customs Act also. The following paragraphs of the above decision are relevant to be quoted as under: "19. The word `any' in this context would mean `all'. We are of this opinion in view of the fact that this Section confers a right of appeal on any person aggrieved. A right of appeal, it is well settled, is a creature of Statute. It is never an inherent right, like that of filing a suit. A right of filing a suit, unless it is barred by Statute, as it is bar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991] (3) Every appeal under this section shall be preferred within a period of thirty days from the date of judgment or order of a Family Court.] (Emphasis supplied) 29. By referring to the aforesaid schemes under different Statutes, this Court wants to underline that the right of appeal, being always a creature of a Statute, its nature, ambit and width has to be determined from the Statute itself. When the language of the Statute regarding the nature of the order from which right of appeal has been conferred is clear, no statutory interpretation is warranted either to widen or restrict the same. 30. The argument that writ jurisdiction of the High Court under Article 226 of the Constitution is a basic feature of the Constitution and cannot be ousted by Parliamentary legislation is far too fundamental to be questioned especially after the judgment of the Constitution Bench of this Court in L. Chandra Kumar vs. Union of India and others - [(1997) 3 SCC 261]. However, that does not answer the question of maintainability of a writ petition whi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sion is extracted hereunder:- "38. Learned counsel for the respondents relied on a judgment of this Court in Seth Chand Ratan vs. Pandit Durga Prasad (D) By Lrs. and Ors. - (2003) 5 SCC 399. Learned counsel relied on paragraph (13) of the said judgment which, inter alia, lays down the principle, namely, when a right or liability is created by a Statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution. However, the aforesaid principle is subject to one exception, namely, where there is a complete lack of jurisdiction of the tribunal to take action or there has been a violation of rules of natural justice or where the tribunal acted under a provision of law which is declared ultra vires. In such cases, notwithstanding the existence of such a tribunal, the High Court can exercise its jurisdiction to grant relief." 45. Subsequent to the above decision, by following the same, another decision was rendered by the Apex Court in United Bank of India Vs. Satyawati Tondon and Others (2010 (8) SCC 110). The said decisi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ication, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance. ....... .............. ........... 55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection." 46. The grievance of the petitioners herein is that no substantial question of law could be raised as against the pre-deposit order and therefore the appeal cannot be filed. We are unable to appreciate this contention. Even while passing the interim orders, the Tribunal would certainly go into the primafacie case and based on such factual consideration and also by taking note of the hardship pleaded and proved by the appellant as well as by considering the interests of the Revenue, it would pass orders on the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ousted in view of Section 35 of FEMA, (d) all the High Courts in India, are entertaining writ petitions challenging an interim order passed by such Tribunals. 12.In our judgment, none of the answers given by the learned counsel are tenable for the reasons discussed below. ................. ...................... ............ For the reasons discussed above, this Court is of the opinion a writ petition is not ordinarily maintainable to challenge an order of the Tribunal. We, therefore, dismiss the appeal, of course for reasons which are different from the ones given by the High Court in dismissing the writ petition. " 47. Thus, it is seen that the Apex Court has gone into the very maintainability of the writ petition itself and gave the categorical findings as discussed supra. Therefore , when the said decision itself is on the question of maintainability of appeal against pre-deposit order, the petitioners cannot contend and raise the very same issue since such contention is directly against the ratio laid down by the Apex Court in the above said case. 48. In a recent decision made in Union of India and Another Vs. Guwahati Carbon Limited ( 2012 (11) SCC 651), the Apex ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 12. Keeping the above principles in view let us notice the fact situation. 13. Section 35-G of the Central Excise Act, 1944 reads as under: 35-G. 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 excise 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. This provision deals with the appeals to the High Court. Under this provision, an appeal shall lie to the High Court from the order passed in an appeal by the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...... 7. A Constitution Bench of the Supreme Court in G.Veerappa Pillai Vs. Raman and Raman Ltd., AIR 1952 SC 192 held that as the Motor Vehicles Act is a self contained code and itself provides for a forum for appeal/revision, the writ jurisdiction should not be invoked in matters relating to its provisions. A similar view was taken in Assistant Collector of Central Excise Chandan Nagar Vs. Dunlop India Limited, AIR 1985 SC 330. ................... ...................... .............. 15. There are well settled principles of writ jurisdiction and Judges also must exercise self-discipline. It has been repeatedly held by the Supreme Court that in tax matters there should be no short circuiting the statutory remedies of appeal, revision, etc. We are therefore surprised that in this case the learned single Judge did not observe this well settled principle of self-discipline and entertained the writ petition despite existence of statutory remedies." 50. The principle as to how a taxing statute is to be construed is well settled. The Apex Court in very many decisions has categorically observed that taxing statute should be strictly construed and the intention of the legislatur....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o be gathered from the language of the provisions particularly where the language is plain and unambiguous. In a taxing Act it is not possible to assume any intention or governing purpose of the statute more than what is stated in the plain language. It is not the economic results sought to be obtained by making the provision which is relevant in interpreting a fiscal statute. Equally impermissible is an interpretation which does not follow from the plain, unambiguous language of the statute. Words cannot be added to or substituted so as to give a meaning to the statute which will serve the spirit and intention of the legislature. The statute should clearly and unambiguously convey the three components of the tax law i.e. the subject of the tax, the person who is liable to pay the tax and the rate at which the tax is to be paid. If there is any ambiguity regarding any of these ingredients in a taxation statute then there is no tax in law. Then it is for the legislature to do the needful in the matter." 51. A Full Bench of this Court in a decision reported in 2008 (1) L.W. 47 (G.Karmegam and Others Vs. The Joint Sub-Registrar and Others) wherein one of us (N.Paul Vasanthakumar,J.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....above case it is clear that the Court has to give effect to the intention of the legislature as expressed in the words used by it and when the language of the legislation has only one meaning, considerations of harshness, injustice or inconvenience will not induce the Court to change the meaning by interpretation. Therefore, when sub-clause (2) of Section 35G is very clear without any ambiguity, to show that an appeal is maintainable against any order passed by the Tribunal, this Court cannot interpret the said provisions as claimed by the petitioners that such provision of law is not intended against interim orders. It is needless to say that intention of the legislation is to be gathered only from the language used therein and not from the pleadings of the parties. 53. It is to be noted at this juncture that there is no statutory definition given in the Act as to what is the meaning of "any order" and "every order". Thus, in the absence of such statutory definition, only the literal meaning has to be given to those words. Above all the Apex Court has considered the word "every order" in Raj Kumar Shivhare's case and held that it means all orders passed by the Tribunal. The....
X X X X Extracts X X X X
X X X X Extracts X X X X
....deposit is a condition precedent and not a condition to be followed. Therefore, once an order of pre-deposit is passed, it is for the party aggrieved either to comply with the said order within the time stipulated therein or to file an appeal before the High Court under Section 35G or Section 130. Further, as we have already observed earlier that the Tribunal being the final fact finding authority has to render its finding on facts, though prima facie, while considering the application seeking for stay or waiver of pre-deposit. If a conditional order is made on pre-deposit application and when the same has not been complied with, it may result in dismissal of the appeal itself as observed by the Apex Court reported in 1981 (8) ELT 679 (SC) (Navin Chandra Chhotelal Vs. Board of Excise & Customs). Therefore, the parties are not precluded from questioning the order passed in the pre-deposit application either by way of filing an appeal against such an order itself or against the final order made in the appeal by raising the substantial question of law on both occasions, since dismissal of the appeal for not complying with the conditional order in effect, is a final order passed in the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....le against any order of the Tribunal, then there is no necessity for giving any further interpretation as observed by the Apex Curt in Raj Kumar Shivhare's case. 61. The petitioners also relied on the decision reported in 2011 (263) E.L.T 28 (Bom) (Videocon Industries Limited Vs. Commissioner of Customs, Aurangabad), wherein the Division Bench of the Bombay High Court has held that an appeal against an order of pre-deposit is not maintainable. The Division Bench of the Bombay High Court though made a reference to Raj Kumar Shivhare's case, had however distinguished the same by holding that appeal against interlocutory order including the order of pre-deposit is not maintainable as the said order does not in any way amount to determination of any question having a relation to the rate of duty or value of the goods. We have given careful consideration to the above said decision. We are unable to subscribe to the above view expressed by the Bombay High Court for the simple reason that the Division Bench therein has proceeded to decide the issue only by considering the sub-section (1) of Section 130 of the Customs Act to observe that the pre-deposit order is not determining ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a right on the parties. 64. The decision reported in 1989 (44) ELT 629 (Excel Rubber Products Vs. Addl. Collector of C.Ex.&Customs) is cited to contend that non-compliance with the requirement of pre-deposit will not affect the maintainability of the appeal. We do not think that such is not the issue before this Court and therefore, the said decision is also not relevant for consideration. 65. The decision reported in 2012 (279) ELT 358 (Hindustan Petroleum Corporation Ltd., Vs. Commissioner of Customs, Mangalore) is cited to contend that appeal is not maintainable against the pre-deposit orders . A Division Bench of the Karnataka High Court has held that pre-deposit is rule and waiver is an exception and in respect of an order passed in such waiver application, appeal cannot be maintained before the High Court. Unfortunately, it appears that the decision of the Raj Kumar Shivhare's case was not placed before the Division Bench of the Karnataka High Court. Therefore, without referring to the said decision, the Division Bench has come to such conclusion. With great respect, we are unable to accept the view expressed therein as we are bound to follow the decision of the Ape....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f India, has vast powers as this Court has under Article 32 of the Constitution of India, but such powers can only be exercised in those cases where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice." After holding so, in the very same decision the Apex Court has also observed at paragraph 15 as follows:- "15. In our opinion, the assessee ought not to have filed a writ petition before the High Court questioning the correctness or otherwise of the orders passed by the Tribunal. The Excise Law is a complete code in order to seek redress in excise matters and hence may not be appropriate for the writ court to entertain a petition under Article 226 of the Constitution. Therefore, the learned Single Judge was justified in observing that since the assessee has a remedy in the form of a right of appeal under the statute, that remedy must be exhausted first. The order passed by the learned Single Judge, in our opinion,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....09 (235) ELT 454 Madras (Sree Nithyakalyani Textiles Ltd., Vs. Commissioner of C.EX. Madurai) and 2009 (239) ELT 226 (Varadhalakshmi Mills Ltd., Vs. Commissioner of C.EX. Madurai) has held that writ is not maintainable as against pre-deposit orders. 78. In a recent unreported decision of Punjab and Haryana High Court made in C.W.P.No. 13288 of 2012 (M/s. Surya Air Products (P) Ltd., Vs. Union of India and Others) dated 15.1.2013, the Division Bench has considered the very same issue in detail and by following the Raj Kumar Shivhare's case and that of Bombay High Court and Allahabad High Court reported in (2010) (253) ELT 364 (Indoworth India Ltd., Vs. CESTATE, Mumbai) ; 2010 (251) ELT 365 (All) (Auram Jewellery Export (P) Ltd., Vs. Union of India) respectively, has held that an order passed by the Tribunal on an application for waiver of pre-deposit of duty is an order passed in appeal and is thus appealable in terms of Section 35G of the Act. 79. We have already noted that, there is no contra decision rendered by the Apex Court subsequent to Raj Kumar Shivhare's case is placed before us. On the other hand, by following the above decision, a subsequent decision of the....