2014 (6) TMI 344 - HC - Central Excise

Waiver of pre deposit - Alternate remedy - Maintainability of appeal - Held that - Proper remedy of the petitioner is to avail the statutory remedy by way of appeal and as such, this writ petition is not maintainable - petitioner is granted a further period of six weeks from the date of receipt of a copy of the judgment to effect the pre-deposit, as ordered by the appellate Forum, upon which the appeal preferred by the petitioner shall be considered and entertained on merits. The recovery proceedings shall be kept in abeyance till such time - Decided conditionally in favour of assessee.

Summary

Issues:
1. Maintainability of the writ petition under Article 226 of the Constitution of India.
2. Applicability of statutory remedy by way of appeal under Section 35G of the Central Excise Act.
3. Interpretation of the scope of the words 'any order' in reference to 'all orders'.
4. Compliance with pre-deposit requirements for appeal proceedings.

Analysis:

1. The petitioner sought various reliefs through the writ petition, challenging the stay order and recovery proceedings related to an adjudication order. However, the Court noted that the appeal filed by the petitioner had been dismissed for non-satisfaction of the pre-deposit as ordered by the appellate authority. The respondent, the Commissioner of Central Excise, emphasized that the appropriate remedy for the petitioner was to file an appeal under Section 35G of the Central Excise Act, rather than a writ petition under Article 226 of the Constitution of India.

2. The Court considered precedents, including the decision in Raj Kumar Shivhare vs. Asst. Director, Directorate of Enforcement, to interpret the scope of the words 'any order' as encompassing 'all orders'. Reference was made to a decision by the Division Bench of the Madras High Court and the Andhra Pradesh High Court, which supported the view that the statutory remedy of appeal should be pursued under Section 35G of the Central Excise Act.

3. After hearing arguments from both sides, the Court concluded that the writ petition was not maintainable, and the petitioner should avail the statutory remedy through an appeal. However, considering the circumstances and the petitioner's request for time to fulfill the pre-deposit requirement, the Court granted an extension of six weeks for the deposit to be made. Upon compliance, the appeal would be entertained on merits, and the recovery proceedings would be stayed until then. The Court set aside the earlier order demanding pre-deposit, allowing the petitioner to pursue the remedy as per Section 35G of the Central Excise Act.

4. In light of the above, the Court disposed of the writ petition, providing a clear directive for the petitioner to follow the statutory appeal process under the Central Excise Act, ensuring compliance with the pre-deposit requirement within the specified timeframe to proceed with the appeal and stay the recovery proceedings accordingly.