2014 (5) TMI 568 - HC - Central Excise

Waiver of pre deposit - maintainability of writ petition before the High Court against the decision for refusal to grant stay by the commissioner (appeals) - Held that - A careful scrutiny of the provisions of Section 35-B which provides for an appeal to the Appellate Tribunal against the orders of the Commissioner (Appeals) and Section 35-G which provides for a remedy of appeal to the High Court against the orders of CESTAT would show that both sections are not in pari materials. The provisions of Section 35-Bvirtually list out the orders against which an appeal would lie to the Appellate Tribunal. An order passed under Section 35-F is not included as one of the order under Section 35-B(1). The section also does not use the expression any or every order . On the contrary, Section 35-G (1) uses the expression every order . It is a fundamental principle of law that statutory authorities derive powers of appeal or revision, only in terms of statutes. If the statutes do not clearly confer power of appeal or revision, they cannot be conferred through interpretation. Hence, the objection with regard to maintainability is overruled. The CESTAT granted waiver of 100% and also granted stay. As against the 3 rd order, in view of the amount involved, the petitioner had to go before the Commissioner (Appeals). Therefore, the Commissioner (Appeals) ought to have followed the precedents provided by the Tribunal. When the provisions in respect of which duty is levied are one and the same and when the CESTAT has granted absolute stay without any condition in respect of two Orders-in-Original, it is not fair for the Commissioner (Appeals) to impose a condition when the third case comes up. - Decided in favour of assessee.

Summary

Issues:
Challenge to interim order for pre-deposit under Section 35F of Central Excise Act, 1944; Maintainability of writ petition against order appealable under Section 35-B; Interpretation of Sections 35-B and 35-G for appeal provisions; Merits of the case regarding waiver of pre-deposit based on Tribunal precedents.

Analysis:
The petitioner challenged an interim order by the Commissioner (Appeals) under Section 35F of the Central Excise Act, 1944, requiring a 50% pre-deposit of duty for proceeding with an appeal under Section 35-B. The petitioner had received an Order-in-Original demanding excise duty, penalty, and interest. The appeal filed by the petitioner sought waiver of pre-deposit, which was denied by the Commissioner (Appeals) in an order dated 22.01.2014, leading to the writ petition challenging the decision.

Regarding the maintainability of the writ petition, the Central Government Standing Counsel argued that the order was appealable under Section 35-B, citing a Division Bench decision. However, the Court disagreed, emphasizing the distinction between appeal provisions under Sections 35-B and 35-G. The Court held that Section 35-B did not include orders under Section 35-F for appeal to the Appellate Tribunal, unlike Section 35-G, which allowed appeals to the High Court against CESTAT orders.

On the merits of the case, the petitioner contended that previous Tribunal decisions granted full waiver and stay for similar Orders-in-Original. The petitioner argued that consistency should be maintained by the Commissioner (Appeals) when dealing with similar cases. The Court agreed with the petitioner, setting aside the impugned order and directing the first respondent to decide the appeal on its merits promptly. The Court highlighted that statutory authorities derive appeal powers only from statutes and cannot be extended through interpretation.

In conclusion, the writ petition was allowed, and the impugned order was overturned, emphasizing the importance of following precedents set by higher authorities in similar cases. The Court directed the expeditious resolution of the appeal without imposing costs.