2014 (2) TMI 1191 - HC - Central Excise

Maintainability of appeal - Section 35G - Held that - Once the appellant in MACE 6/2006 themselves admitted the position that no appeal under Section 35G was maintainable as no substantial question of law is involved in the matter and when this order dated 23-8-2006 passed in MACE No. 6/2006 above is still in existence, in ignorance of or contrary to the same, this Court cannot now take cognizance of the matter and hear this appeal on the ground that some substantial question of law is involved. The order passed on 23-8-2006 as indicated herein above operates as Res judicata so far as hearing of this appeal is concerned. That being so, till the order passed on 23-8-2006 stands and is not withdrawn, reviewed/recalled or set aside in a proper proceedings, no indulgence in this appeal can be made by this Court now.

Summary

Issues: Appeal under Section 35G of Central Excise Act challenging an order by the Tribunal, maintainability of the appeal, withdrawal of appeal with liberty to file a writ petition, subsequent filing of a writ petition, res judicata effect of previous orders on the current appeal.

Analysis:
The judgment involves an appeal under Section 35G of the Central Excise Act challenging an order of the Custom, Excise and Service Tax Appellate Tribunal. The maintainability of this appeal was questioned, highlighting that appeals under Section 35G are limited to substantial questions of law arising from the Tribunal's order. The Division Bench previously dismissed an appeal on the basis that no substantial question of law was involved, advising the petitioner to file a writ petition instead. Subsequently, a writ petition was filed and withdrawn with liberty to file an appeal under Section 35G, leading to the current appeal.

The Court emphasized the principle of res judicata, stating that the previous order from the Division Bench dismissing the appeal on the grounds of no substantial question of law operates as res judicata. The Court noted that as long as the order from 23-8-2006 remains valid and unchanged, the current appeal cannot be entertained based on the claim of substantial question of law. The judgment highlights the importance of adhering to previous decisions and the finality of orders, barring any indulgence in the current appeal due to the principles of res judicata.

Ultimately, the Court found no grounds for indulgence in the current appeal and dismissed it, granting the appellant liberty to proceed in accordance with the law. The judgment underscores the significance of prior judicial decisions, the limitations on appeal grounds under Section 35G, and the procedural implications of withdrawing and refiling appeals in the legal context. The application of res judicata in this case serves as a crucial aspect in determining the fate of the current appeal and upholding the integrity of the legal process.