TMI Blog2012 (11) TMI 962X X X X Extracts X X X X X X X X Extracts X X X X ..... questions of law. In view of the availability of statutory appellate forum, this Court is of the view that the writ petition is not maintainable against the impugned order. - Writ petition dismissed. - WRIT PETITION T No 7960 of 2011 - - - Dated:- 26-9-2012 - Shri Satish K Agnihotri J Shri Shashank Dubey Senior Advocate with Shri Neelabh Dubey Advocate for the petitioner Shri Manish Sharma Advocate for the respondents Judgement O R D E R 1. By way of this petition, the petitioner seeks quashing of the order dated 16.09.2011 (Annexure P/6) passed by the Customs, Excise Service Tax Appellate Tribunal (Principal Bench) New Delhi (for short `the Tribunal') whereby the petitioner has been directed to deposit an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1,04,92,980/- including cess, under section 11A of the Act, 1944, levy of interest under Rule 14 of the Rules, 2004 read with section 11AB of the Act, 1944 and levy of penalty under Rule 15 of the Rules, 2004 read with Rule 25 of the Central Excise Rules, 2002 and section 11AC of the Act, 1944. The said notice was replied by the petitioner company on 18.12.2009 (Annexure P/2). The respondent N. 1 confirmed its demand alongwith interest as proposed in the show cause notice and imposed penalty equal amount of duty demand under section 11AC of the Central Excise Act with Rule 15 of the Rules, 2004 by order dated 28.05.2010 (Annexure P/3). Being aggrieved, the petitioner Company filed an appeal under section 35F of the Act, 1944 alongwith an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Central Excise Another2, has dealt with question of undue hardship to the assessee in the event of imposition of pre-deposit and held to strike a balance with regard to safeguarding the interest of revenue also. The plea of the petitioner that demands are time barred and the liability of the petitioner would only be in respect of items used in manufacture of structures of Capital Goods is incorrect. 5. Section 35C of the Act, 1944 reads as under: "35C. Orders of Appellate Tribunal.- (1) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rate of duty of excise or to the value of goods for the purposes of assessment) if the High Court is satisfied that the case involves a substantial question of law. xxx xxx xxx (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which - (a) has not been determined by the Appellate Tribunal, or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision of such question of law as is referred to in sub- section (1). 8. Section 35 of the FEMA reads as under: "Appeal to the High Court. - Any person aggrieved by any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scal Statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go bye by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating the aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction. " 11. Section 35G of the Act, 1944 provides for an appeal against any order passed by the Appellate Tribunal. Thus, the litigant cannot be permitted to seek redressal of his grievances by invoking the forum of judicial revie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be impugned with regard to the direction to deposit an amount of Rs. 1 crore within a period of 12 weeks from the date of the order and report compliance on 25.01.2012 and subject to the said deposit, the pre- deposit of the balance amount of duty and the entire amount of penalty shall stand waived and its recovery stayed during pendency of the appeal, clearly indicates that the same was passed in an appeal pending consideration. 14. A Division Bench of the High Court of Bombay, in Indoworth India Ltd. v. CESTAT, Mumbai, observed that the order of deposit is an order made in appeal. 15. So far as question of consideration of prima facie case and undue hardship is concerned, this is on merit. If the petitioner is aggrieved on the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
