2012 (11) TMI 962 - HC - Central Excise

Maintainability of Writ petition against the interim order of tribunal - Waiver of pre-deposit of Duty, Interest and Penalty - prima facie case and undue hardship - held that - Section 35G of the Act, 1944 provides for an appeal against any order passed by the Appellate Tribunal. - Thus, the litigant cannot be permitted to seek redressal of his grievances by invoking the forum of judicial review under the writ jurisdiction on the ground that there may not be any question of law as required under section 35G of the Act. Sub section (5) and (6) of Section 35G deal with the substantial questions of law. In view of the availability of statutory appellate forum, this Court is of the view that the writ petition is not maintainable against the impugned order. - Writ petition dismissed.

Summary

Issues:
Challenge to order of Customs, Excise & Service Tax Appellate Tribunal for deposit amount. Interpretation of sections 35F, 35G of the Act, 1944. Maintainability of writ petition for judicial review. Consideration of prima facie case and undue hardship. Alternative statutory forum for redressal.

Analysis:
The petitioner sought quashing of an order directing deposit of Rs. 1 crore by Customs, Excise & Service Tax Appellate Tribunal, with waiver of balance duty and penalty pending appeal. The petitioner contended that waiver of pre-deposit involves factual aspects, not substantial question of law. Respondent argued for alternative statutory remedy under law. The Tribunal's order was challenged based on interpretation of sections 35F, 35G of the Act, 1944.

The Court examined the provisions of sections 35F, 35G of the Act, 1944, analogous to section 35 of the FEMA, emphasizing appeal to High Court on substantial question of law. Citing precedent, the Court highlighted the legislative intent for statutory appeal process, discouraging bypassing of appellate tribunals for writ jurisdiction. The Court clarified the scope of appeal against any order of the Tribunal, whether interim or final, as per the wording of the statute.

Regarding the consideration of prima facie case and undue hardship, the Court noted these aspects as merit-based issues, suggesting recourse to statutory forums for redressal. The Court emphasized the availability of appellate mechanisms for addressing grievances related to pre-deposit and penalty, rather than seeking direct judicial review through writ petitions. The dismissal of the writ petition was based on lack of exceptional circumstances warranting deviation from statutory appeal procedures.

In conclusion, the Court found the writ petition not maintainable against the impugned order, emphasizing the need to adhere to statutory appellate processes for addressing legal issues. No exceptional circumstances were identified to justify deviating from established legal avenues for redressal. The Court dismissed the writ petition without costs, underscoring the importance of following statutory frameworks for legal remedies.