2016 (7) TMI 472

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....it of Rs. 2 crores, as a condition for entertaining the appeal and for grant of stay. 2. Heard Mr.Joseph Prabhakar, learned counsel for the petitioner and Mr.P.Mahadevan, learned Senior Central Government Standing Counsel for the second respondent. 3. This writ petition actually went before a learned Single Judge. The learned Single Judge reserved orders on 18.1.2016, after being confronted with a decision of the Division Bench of this Court in Metal Weld Electrodes Vs. CESTAT, Chennai [(2014) 299 E.L.T. 3 (Mad.)], to the effect that the orders passed on an application for waiver of predeposit is appealable  and that the writ petitions are not maintainable.   4. Thereafter, the learned Judge directed the matter to be post....

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....e decision of the Supreme Court in Rajkumar Shivhare Vs. Assistant Director, DoE [2010 (4) SCC 772], a Division Bench of this Court answered the question referred to them in Metal Weld Electrodes, in paragraph 80 as follows : "Thus, by considering all the above facts and circumstances, we answer the reference as follows: The order passed by the CESTAT in terms of Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962 is appealable in terms of Section 35G of the Excise Act, 1944 or Section 130 of the Customs Act, 1962." 7. After answering the reference in paragraph 80, the Division Bench held in paragraph 81 of Metal Weld Electrodes that the writ petitions are not maintainable. Therefore, a ....

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....led that a judgment is a precedent for what it lays down and not what follows out of it. 10. Therefore, we are of the considered view that the answer given in paragraph 80 of its decision by the Division Bench in Metal Weld Electrodes, is perfectly correct. But, at the same time, in exceptional circumstances carved out in the second part of paragraph 38 of the decision of the Supreme Court in Rajkumar Shivhare, the writ petitions are also maintainable. 11. However, such writ petitions cannot be posted before Single Judges. They have to be posted only before the Division Benches dealing with tax cases. This will avoid the assessees' attempts to have two remedies before this Court as against an order, against which, even an appeal w....