2015 (10) TMI 686 - HC - Central Excise

Waiver of pre deposit - Extension of stay order - maintainability of appeal - appeal lies under Section-35G(2) - Held that - even though the appeal should have been filed but by not filing the appeal the petitioner cannot be nonsuited on this ground, inasmuch as, the appeal would also be filed before the same High Court and would have been dealt with by the same Bench. Further, we find that the limitation for filing an appeal before High Court is 180 days from the date of the order of the Tribunal and prior to the expiry of the said date the writ petition was filed - Decided against Revenue.

Summary

Issues: Jurisdiction of High Court in entertaining writ petition despite availability of appeal under Section-35G(2) of the Act, validity of pre-condition for entertaining appeal set by Tribunal, delay in depositing pre-condition amount, recall application rejection, deposit of entire excise duty during pendency of writ petition, setting aside Tribunal orders, directions for Tribunal to hear appeal on merits.

The judgment by the High Court dealt with the jurisdiction of the court in entertaining a writ petition despite the availability of an appeal under Section-35G(2) of the Act. The Central Excise Department raised a preliminary objection, arguing that the writ petition was not maintainable as an appeal should have been filed instead. The court, after perusing the provision, held that the petitioner cannot be nonsuited for not filing the appeal, especially when the appeal would have been dealt with by the same High Court and bench. Additionally, since the writ petition was filed within the limitation period of 180 days from the Tribunal's order, the objection raised by the department was overruled.

The case involved a situation where the Customs, Excise & Service Tax Appellate Tribunal had directed the petitioner to deposit a sum of Rs. 1 lac within a specified period as a pre-condition for entertaining the appeal. The petitioner deposited the amount after the prescribed period, leading to the dismissal of the appeal by the Tribunal. Despite a recall application being rejected, the High Court considered the fact that the petitioner had deposited the entire excise duty demanded during the pendency of the writ petition, amounting to Rs. 3,30,000. The court, in the interest of justice, decided that the appeal of the petitioner should be heard on merits by the Tribunal, setting aside the Tribunal's orders and directing the appellate tribunal to decide the appeal within six months from the date of the court's order.

In conclusion, the High Court's judgment clarified the jurisdictional aspect of entertaining a writ petition over an appeal, addressed the validity of pre-condition set by the Tribunal for entertaining the appeal, considered the delay in depositing the pre-condition amount, and emphasized the importance of hearing the appeal on its merits, especially after the petitioner had deposited the entire excise duty demanded during the legal proceedings. The court's decision to set aside the Tribunal's orders and provide directions for the Tribunal to hear the appeal on merits within a specified timeframe aimed at ensuring justice and proper adjudication of the matter.