2013 (12) TMI 225 - HC - Central Excise

Scope of Section 35G of the Central Excise Act, 1944 appealable orders or writ petition to be filed against an interim order passed by CESTAT against Application for waiver of Pre-deposits Held that - The words every order passed in appeal contemplates number of orders, not one or singular, and passing of the same is possible on several issues and problems in connection with appeal - interlocutory proceedings are contemplated to be filed - the Legislature has used the word in appeal not on appeal - If it were so then it would have been one order meaning final order - But that is not the intention of the Legislature because unless there is appeal, there cannot be any application for dispensation of pre- deposit, as the application of this nature is not independent one unlike when the application is made for dispensation of service of notice under section 80 of the Code of Civil Procedure at the time of filing of the suit against amongst other Government, as this application is an independent of suit not in the suit - the scheme of the provision is that one has to prefer an appeal first and then in connection therewith application for pre-deposit is to be made - Pre- condition of hearing of appeal is either pre-deposit or dispensation thereof either whole or part thereof. The contention that the orders passed on the application for pre-deposit is not covered by Section 35G cannot be accepted Following M/s. Metal Weld Electrodes, Chennai Vs. M/s. Ellan Industries, Coimbatore 2013 (11) TMI 240 - MADRAS HIGH COURT - The petitioner would be entitled to prefer appeal if advised in accordance with law - the interim order passed already to operate for a period of ten days from date allowed Decided in favour of Petitioner.

Summary

Issues:
1. Appealability of the order passed on an application for dispensation of pre-deposit under Sec.35G of the Central Excise Act, 1944.

Analysis:
The judgment by the High Court of Andhra Pradesh delves into the issue of whether an order passed on an application for dispensation of pre-deposit is appealable under Sec.35G of the Central Excise Act, 1944. The Additional Solicitor General of India argued that such orders are appealable, citing a decision by the Madras High Court. The petitioner contended that the impugned order was not passed in an appeal but on an application for pre-deposit, thus not falling under the appealable category. The court was tasked with determining if the order in question qualifies as appealable under Sec.35G, which necessitated a thorough analysis of statutory remedies and the court's discretionary powers under Article 226 and 227 of the Constitution.

The court scrutinized the language of Sec.35G, emphasizing the phrase "every order passed in appeal," suggesting that multiple orders could be issued on various issues within an appeal, including interlocutory proceedings. The legislative intent was clarified, highlighting the sequential process of filing an appeal followed by an application for pre-deposit. The court rejected the petitioner's argument that orders on pre-deposit applications are not covered by Sec.35G, citing a judgment by the Madras High Court which supported the appealability of such orders. The court further referenced specific paragraphs of the Madras High Court decision to reinforce its stance on the appealability of orders related to pre-deposit applications.

Ultimately, the High Court concluded that the order in question was appealable under Sec.35G of the Central Excise Act, 1944, aligning with the interpretation provided by the Madras High Court. The petitioner, upon this decision, expressed intent to pursue the alternative remedy of appeal. Consequently, the court disposed of the writ petition by allowing the petitioner to prefer an appeal if advised in accordance with the law. The interim order was permitted to operate for a specified period, after which it would automatically stand vacated unless upheld by the appellate forum. The court clarified that its observations should not influence future decisions and left the authority open to take appropriate actions.

In conclusion, the judgment meticulously analyzed the appealability of orders related to pre-deposit applications under Sec.35G, drawing insights from statutory provisions, judicial precedents, and the legislative intent behind the appeal mechanism under the Central Excise Act, 1944. The decision provided clarity on the issue at hand and guided the parties on the next steps to be taken in pursuit of the appropriate legal remedies.