2020 (1) TMI 193 - HC - Central Excise

Maintainability of appeal - appellant filed an application for rectification which was dismissed. Instead of challenging the order passed by the CESTAT, rejecting the rectification application, the appellant has instead preferred the present appeals questioning the very same order passed by CESTAT, New Delhi - HELD THAT - While seeking permission to withdraw Central Excise Appeal Nos. 41 42 of 2018, the appellant neither sought liberty to file an appeal, later against the order passed by CESTAT in Excise Appeal Nos. 50166 and 51678 of 2016, dated 20-9-2017 nor was any such leave granted. Reliance placed in the case of Sarguja Transport Service v. S.T.A. Tribunal, Gwalior 1986 (11) TMI 377 - SUPREME COURT where it was held that the principle underlying rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy. The principles laid down by the Supreme Court, in Sarguja Transport, both with regards Order 23 Rule 1(3) C.P.C, and Articles 226 and 227 of the Constitution, would also apply to an appeal under Section 35G of the Central Excise Act, 1944 - Since the appellant neither sought, nor were they granted, liberty to prefer an appeal against before this Court, these two appeals are liable to be dismissed on this short ground. Appeal dismissed.

Summary

Issues:
Appeal under Section 35G of the Central Excise Act, 1944 against CESTAT order; Permission to withdraw earlier appeals and pursue rectification application; Dismissal of rectification application and filing of present appeals; Application of principles from Sarguja Transport case to withdrawal of appeals; Dismissal of appeals for not seeking or obtaining permission to file fresh appeal.

Analysis:
The judgment pertains to an appeal filed under Section 35G of the Central Excise Act, 1944 against an order by CESTAT, New Delhi. The appellant had initially filed Central Excise Appeal Nos. 41 & 42 of 2018 but later sought permission to withdraw these appeals to pursue a rectification application. The rectification application was subsequently dismissed, leading the appellant to file the present appeals challenging the original CESTAT order. However, the appellant did not challenge the rejection of the rectification application but directly questioned the CESTAT order. The court highlighted the importance of seeking permission to withdraw appeals, citing the Supreme Court's observations in the "Sarguja Transport" case regarding the distinction between abandonment and withdrawal of suits. The Court emphasized that a litigant should obtain court permission to file a fresh appeal to prevent abuse of the legal process.

Moreover, the judgment discussed the applicability of the principles laid down in the Sarguja Transport case to appeals under the Central Excise Act, 1944. It was noted that since the appellant did not seek nor were granted permission to file an appeal before the Court, the present appeals were deemed liable to be dismissed. The Court concluded that the appeals failed on this ground and were accordingly dismissed, albeit without costs. The judgment underscores the significance of following proper legal procedures and obtaining necessary permissions when withdrawing appeals to maintain the integrity of the legal process and prevent misuse of judicial resources.