2005 (7) TMI 119 - HC - Customs

Summary

Issues:
Challenge to order of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) directing discharge of bank guarantee pending appeal.

Analysis:
The petitioner filed a writ petition seeking a writ of Certiorari to quash the order of the CESTAT directing discharge of a bank guarantee. The Department argued that they have filed an appeal against the CESTAT's order, and the bank guarantee was directed to be discharged after the appeal was filed. The Court noted that the 1st respondent had filed an appeal against the original order of adjudication, and the CESTAT directed the bank guarantee to be furnished during the appeal. However, as the 1st respondent succeeded before the CESTAT, the original order of adjudication was set aside, leading to the discharge of the bank guarantee. The Court emphasized that if the petitioner wished to challenge the discharge of the bank guarantee, they should have approached the Court where the correctness of the CESTAT's order was being questioned in the appeal. The Court held that the petitioner cannot maintain a separate writ petition solely for the purpose of keeping the bank guarantee alive.

The Department argued that the order directing discharge of the bank guarantee was an independent order that could be challenged through a writ petition. However, the Court disagreed with this contention, stating that the petitioner should have addressed the issue within the context of the appeal filed by the Department against the CESTAT's order. Consequently, the Court dismissed the writ petition, along with the associated miscellaneous petition, without imposing any costs.