2013 (8) TMI 504 - HC - Central Excise

Entertainability of the petition Interlocutory order - Waiver of pre- deposit - Whether the Petition could be entertained under Article 227 of the Constitution of India as the same had been filed against the interlocutory order - The petitioner had filed this writ petition under Article 226/227 of the Constitution of India being aggrieved by the impugned interlocutory order for not allowing dispensing with the requirement of depositing the entire sum made under the proviso of the Central Excise Act Held that -The petition being filed against the interlocutory order passed by the appellate authority under its vested discretionary jurisdiction, could not be interfered under the superintending or revisional jurisdiction of this Court and deserves to be dismissed. Discretionary Jurisdiction u/s 35(F) - It was undisputed fact on record that the order had been passed by the appellate authority by virtue of the proviso of Section 35 (F) of the Act under its vested discretionary jurisdiction. Before proceeding to consider the merits of the matter - the interlocutory order had not been found to be improper or contrary to the proviso of Section 35 (F) of the Act and in such premises - there was no perversity, illegality, arbitrariness or anything against the propriety of law in the interlocutory order - the petition was devoid of any merits was dismissed at the stage of motion hearing Decided against assesse.

Summary

Issues:
Challenge to interlocutory order under Article 226/227 of the Constitution of India regarding deposit under Central Excise Act.

Analysis:
The petitioner challenged an interlocutory order passed by the Central Excise and Service Tax Appellate Tribunal, which directed the petitioner to deposit a sum of Rs.8,00,000 under the proviso of the Central Excise Act. The petitioner argued that the appellate authority should have exempted them from depositing the entire sum as the alleged demand was for an amount already deposited. The petitioner's counsel cited various legal decisions to support their contention. On the other hand, the respondent's counsel argued that the impugned order was proper and based on the factual matrix of the case. The court examined the proviso of Section 35 (F) of the Act, which allows the appellate authority to exempt the appellant from depositing the sum. The court considered the entertainability of the petition under Article 227 of the Constitution of India and referenced legal precedents highlighting that the High Court should not interfere with interlocutory orders unless there is an illegality or material irregularity.

The court further referenced legal judgments emphasizing that the supervisory jurisdiction of the High Court under Article 227 is limited to ensuring that inferior courts or tribunals function within their authority and not to correct errors of law. The court noted that the impugned order was passed under the discretionary jurisdiction of the appellate authority as per Section 35 (F) of the Act. The court found that the appellate authority had considered the matter judiciously and had the discretion to exempt the petitioner from depositing the entire sum, hence dismissing the petitioner's argument that the order was arbitrary.

Additionally, the court reviewed the legal cases cited by the petitioner's counsel and found them to be primarily related to final orders rather than interlocutory orders. The court concluded that the petition challenging the interlocutory order could not be interfered with under the superintending or revisional jurisdiction of the court. The court held that the impugned interlocutory order was proper and not contrary to the provisions of the Act. Consequently, the court dismissed the petition for lacking merit at the motion hearing stage.