2012 (11) TMI 1022 - AT - Central Excise

Maintainability of appeal - Appeal u/s 35F - Appeal to Tribunal - Held that - On bare reading of the Section 35B of the Central Excise Act 1944 it is evident that a party aggrieved of the order passed by the Commissioner under Section 35A can prefer an appeal before the Tribunal. Admittedly the impugned order has been passed under Section 35F of the Central Excise Act - Decided against assessee.

Summary

Issues:
- Maintainability of the appeal under Section 35B of the Central Excise Act.
- Interpretation of the order of the Hon'ble High Court regarding the appeal.
- Applicability of Section 35F of the Central Excise Act in the appeal.

Issue 1: Maintainability of the appeal under Section 35B of the Central Excise Act:
The appellant challenged the order of the Commissioner (Appeals) directing the deposit of the entire duty demand confirmed by the Adjudicating Authority under the first proviso to Section 35F of the Central Excise Act. The appellant, represented by Shri Naveen Bindal, argued that the order of pre-deposit under Section 35F is not appealable but filed the appeal seeking the view of the CESTAT. However, the Hon'ble High Court's order did not mention the appealability of the impugned order, allowing the appellant to withdraw the writ petition with liberty to approach the Tribunal. The CESTAT analyzed Section 35B of the Central Excise Act, which outlines the scope of appeals to the Appellate Tribunal. The Tribunal concluded that since the impugned order was passed under Section 35F, not 35A, the appeal was not maintainable under the provisions of the Act. Consequently, the appeal was dismissed.

Issue 2: Interpretation of the order of the Hon'ble High Court regarding the appeal:
The appellant had initially filed a writ petition in the Hon'ble High Court of Punjab & Haryana challenging the impugned order. During the proceedings, the High Court deemed the writ petition not maintainable and allowed the appellant to withdraw it with liberty to pursue legal remedies. The appellant then approached the CESTAT with the appeal. The CESTAT carefully examined the High Court's order, noting that it did not specifically address the appealability of the impugned order but permitted the appellant to explore legal remedies. This interpretation guided the CESTAT's decision on the maintainability of the appeal under Section 35B of the Central Excise Act.

Issue 3: Applicability of Section 35F of the Central Excise Act in the appeal:
The CESTAT scrutinized the relevant provisions of the Central Excise Act, particularly Section 35F, which pertains to the pre-deposit of duty demand as a pre-condition to hearing an appeal. Despite the appellant's contention that the order of pre-deposit under Section 35F was not appealable, the CESTAT emphasized that the impugned order fell under Section 35F, not Section 35A, making the appeal untenable under the statutory framework. The CESTAT's analysis of the Act's provisions led to the dismissal of the appeal based on the specific applicability of Section 35F in the case at hand.

This detailed analysis of the judgment from the Appellate Tribunal CESTAT NEW DELHI underscores the critical issues of maintainability under Section 35B, the interpretation of the Hon'ble High Court's order, and the application of Section 35F of the Central Excise Act in determining the fate of the appeal.