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2013 (4) TMI 107 - HC - Central ExciseWrit petition preliminary objection raised by department regarding maintainability of the petition related to order of waiver of condition of pre-deposit of duty is an appealable order in terms of Section 35G of the Central Excise Act, 1944 Held that Relying on the cases of Raj Kumar Shivhare Vs. Assisstant Director, Directorate of Enforcement 2010 (4) TMI 432 - SUPREME COURT and Indoworth India Ltd. Vs. CESTAT, 2010 (3) TMI 411 - BOMBAY HIGH COURT , Auram Jewellery Export (P) Ltd. Vs. Union of India 2008 (12) TMI 350 - ALLAHABAD HIGH COURT respectively, we find that an order passed by the Tribunal on an application for waiver of pre-deposit of duty is an order passed in appeal and is, thus, appealable in terms of Section 35G of the Act.
Issues Involved:
1. Maintainability of the writ petition challenging an order passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) regarding waiver of pre-deposit of duty. 2. Interpretation of Section 35G of the Central Excise Act, 1944 concerning appealable orders. 3. Applicability of the Supreme Court judgment in Raj Kumar Shivhare's case to the present case. Detailed Analysis: 1. Maintainability of the Writ Petition: The primary issue addressed is whether a writ petition challenging an order by the CESTAT on an application for waiver of pre-deposit of duty is maintainable. The Revenue raised a preliminary objection, citing the Supreme Court judgment in *Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement* (2010), arguing that such an order is appealable under Section 35G of the Central Excise Act, 1944, and hence, the writ petition is not maintainable. 2. Interpretation of Section 35G of the Central Excise Act, 1944: The Court examined the statutory provisions, particularly Section 35F and Section 35G of the Central Excise Act, 1944. Section 35F mandates the deposit of duty or penalty pending appeal unless the Appellate Tribunal waives it due to undue hardship. Section 35G allows appeals to the High Court from every order passed in appeal by the Appellate Tribunal, provided it involves a substantial question of law. The Court interpreted the term "every order" to include orders on applications for waiver of pre-deposit, thus making them appealable. 3. Applicability of the Supreme Court Judgment in Raj Kumar Shivhare's Case: The petitioner argued that the Supreme Court's judgment in *Raj Kumar Shivhare* was distinguishable as it pertained to the Foreign Exchange Management Act, 1999, which uses the term "any decision or order" for appealable orders, unlike Section 35G of the Central Excise Act, which uses "every order passed in appeal." However, the Court found that the expressions "every order" and "any order or decision" are substantially similar in their legal implications. The Supreme Court had held that "any order or decision" includes all decisions or orders of the Appellate Tribunal, thus making them appealable to the High Court. The Court also referred to judgments from the Bombay High Court in *Indoworth India Ltd.* and the Allahabad High Court in *Auram Jewellery Export (P) Ltd.*, which supported the view that orders directing the deposit of amounts are made in appeal and are thus appealable under Section 35G. Conclusion: The Court concluded that an order passed by the Tribunal on an application for waiver of pre-deposit of duty is indeed an order passed in appeal and is appealable under Section 35G of the Act. Consequently, the petitioner has an effective alternative remedy of appeal, and the writ jurisdiction of the Court should not be exercised. The writ petition was dismissed accordingly.
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