2013 (11) TMI 240 - HC - Central Excise

Writ Petition Maintainable OR Not Alternate Remedy available Whether the order passed by the CESTAT in terms of Section 35F of the Excise Act, 1944 or Section 129-E 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 - Held that - The order passed by the CESTAT in terms of Section 35F of the Central Excise Act, 1944 or Section 129-E 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. There is no contra decision rendered by the Apex Court subsequent to Raj Kumar Shivhare s case 2010 (4) TMI 432 - SUPREME COURT is placed before us. On the other hand, by following the above decision, a subsequent decision of the Apex Court in Satyawati Tandon case was rendered by holding that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the statute, which decision has been discussed supra. Appellate remedy is available against those orders u/s 35G of the Central Excise Act, 1944 or u/s 130 of the Customs Act, 1962 - all the petitions are liable to be dismissed on the ground of maintainability - all the petitions are dismissed as not maintainable, however by giving liberty to the petitioners to file appeal under Section 35G of the Central Excise Act, 1944 or under Section 130 of the Customs Act, 1962, wherever it applies - writ petitions are dismissed only on the ground of maintainability, the petitioners are entitled to canvass the correctness of the order passed by the Tribunal in their appeal by raising all the grounds as well as the substantial questions of law available to them liberty is granted to file appeal, the parties are directed to maintain status quo as on date.

Issues Involved:
1. Maintainability of writ petitions against interim orders of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT).
2. Applicability of the decision in Raj Kumar Shivhare's case to the Central Excise Act, 1944, and the Customs Act, 1962.
3. Interpretation of Sections 35G of the Central Excise Act, 1944, and 130 of the Customs Act, 1962, regarding appeals against interim orders.

Issue-wise Detailed Analysis:

1. Maintainability of Writ Petitions Against Interim Orders of CESTAT:
The core issue was whether writ petitions are maintainable against interim orders passed by CESTAT, specifically those concerning pre-deposit requirements. The Revenue contended that appeals under Section 35G of the Central Excise Act or Section 130 of the Customs Act are the appropriate remedies, referencing the Supreme Court decision in Raj Kumar Shivhare's case. The petitioners argued that writ petitions are maintainable, citing previous instances where High Courts entertained such petitions despite the availability of alternative remedies.

The judgment clarified that writ petitions are generally not maintainable when an effective statutory remedy is available. The court emphasized that the legislative intent, as expressed in the statutory provisions, should be given effect without judicial interpretation that either widens or restricts the scope beyond what is clearly stated.

2. Applicability of Raj Kumar Shivhare's Case:
The petitioners contended that the decision in Raj Kumar Shivhare's case, which dealt with the Foreign Exchange Management Act (FEMA), 1999, should not be applied to the Central Excise Act and the Customs Act. They argued that the contexts and legislative intents of these enactments are different.

However, the court found that the interpretation given by the Supreme Court to the phrase "any order" in Raj Kumar Shivhare's case should be applied to similar phrases in the Central Excise Act and the Customs Act. The court noted that unless there is an express contrary intention in the statutes themselves, the interpretation of "any order" to mean "all orders" should be consistent across different enactments.

3. Interpretation of Sections 35G of the Central Excise Act, 1944, and 130 of the Customs Act, 1962:
The petitioners argued that Sections 35G and 130 only allow appeals against final orders and not interim orders. They claimed that the phrase "every order passed in appeal by the Appellate Tribunal" should be interpreted to exclude interim orders.

The court conducted a detailed analysis of the statutory provisions and found that the legislative intent was to allow appeals against "any order passed by the Appellate Tribunal," including interim orders. The court highlighted that the use of different phrases in subsections (1) and (2) of Sections 35G and 130 indicated a broader scope for appeals, encompassing both final and interim orders. The court emphasized that the statutory language was clear and unambiguous, and therefore, no further judicial interpretation was warranted.

The court concluded that the appellate remedy under Sections 35G and 130 is available for any order passed by CESTAT, including interim orders concerning pre-deposit requirements. Consequently, the writ petitions were dismissed as not maintainable, with liberty granted to the petitioners to file appeals under the relevant statutory provisions. The court also directed the parties to maintain the status quo for three weeks to allow for the filing of appeals.

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