2010 (11) TMI 321 - HC - Central Excise

Interim relief - Appeal u/s 35B - so far as the interpretation of Rule is concerned that can not be made by the Govt. of India in a manner so as to take away the discretion of the appellate authority or the adjudicating authority to apply its own mind for finding that how much duty should be charged in a given case under the rules - Consider Rule-8 of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules 2008 independently as per the rules and not merely on the clarification issued by the Govt. of India in this regard - Accordingly the writ petition is disposed of

Summary

Issues:
Challenge against final order, maintainability of writ petition, interpretation of Rule-8 of Pan Masala Packing Machines Rules, 2008, discretion of appellate authority, statutory remedy under Section 35-B of Central Excise Act, 1944.

Analysis:
The judgment involves a challenge against a final order where the respondents assured that no provisional attachment of the petitioner's property was made, but final orders were passed. The respondents argued that the petitioner should file an appeal under Section 35-B of the Central Excise Act, 1944, for interim relief instead of maintaining the writ petition. The petitioner, represented by counsel, acknowledged the appeal remedy but highlighted a clarification issued by the Government regarding Rule-8 of the Pan Masala Packing Machines Rules, suggesting that the appellate authority might not deviate from this clarification. The Court opined that the interpretation of the Rule should not restrict the discretion of the appellate or adjudicating authority to determine duty in individual cases. Consequently, the Court directed the petitioner to file an appeal under Section 35-B and apply for stay, ensuring prompt consideration without delay. Additionally, the appellate authority was instructed to independently assess the petitioner's case regarding Rule-8, following the rules rather than solely relying on the government's clarification. Ultimately, the writ petition was disposed of with finality, emphasizing the need for a thorough examination by the appellate authority based on the legal provisions.

This judgment addresses the critical issue of the petitioner challenging a final order and the subsequent debate on the maintainability of the writ petition versus seeking relief through the statutory remedy under Section 35-B of the Central Excise Act, 1944. The Court's analysis delves into the interpretation of Rule-8 of the Pan Masala Packing Machines Rules, 2008, emphasizing the importance of preserving the discretion of the adjudicating authority and appellate authority in determining duty amounts. The Court's directive to file an appeal and apply for stay underscores the procedural aspects that the petitioner must follow to seek redress. Moreover, the Court's specific instruction to the appellate authority to independently evaluate the petitioner's case regarding Rule-8 signifies the importance of a comprehensive and unbiased review based on legal provisions rather than external clarifications. This judgment highlights the significance of following due process and legal procedures in matters concerning statutory remedies and administrative decisions under the Central Excise Act, 1944.