TMI Blog2013 (4) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... venue relying upon the judgment of Hon ble Supreme Court in Raj Kumar Shivhare Vs. Assisstant Director, Directorate of Enforcement 2010 (253) ELT 3 that the writ petition against an order deciding an application for waiver of condition of pre-deposit of duty is an appealable order in terms of Section 35G of the Central Excise Act, 1944 (for short the Act ), therefore, the present writ petition challenging an order passed by the Customs, Excise and Service Tax Appellate Tribunal (for short the Tribunal ) is not maintainable. Before we consider the respective arguments of the parties, certain statutory provisions of the Act as well as the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 (for short the Rules ) need to be extracted. The same are as under: The Central Excise Act, 1944 35F. Deposit, pending appeal, of duty demanded or penalty levied Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner has argued that the judgment of the Hon ble Supreme Court in Raj Kumar Shivhare s case (supra) is distinguishable inasmuch as in the said case, the Supreme Court was examining the provisions of Foreign Exchange Management Act, 1999, whereas Section 35 of the said Act specifically provides that any person aggrieved by any decision or order of the Appellate Tribunal may file appeal to the High Court, whereas under Section 35G of the Act, an appeal lies to the High Court from every order passed in appeal by the Appellate Tribunal. It is contended that the order for waiver of pre-deposit of duty is not an order passed in appeal, as order passed in appeal is referable only to the final adjudicatory order. In support of his arguments, Mr. Sanjay Bansal relied upon Shaw Wallace Co. Ltd. Vs. Income Tax Appellate Tribunal (1999) 240 ITR 579, Visvas Promoters (P) Ltd. Vs. ITAT (2010) 323 ITR 114 and Lakshmi Vilas Bank Ltd. Vs. Income Tax Appellate Tribunal others (2010) 329 ITR 564. Mr. Jagmohan Bansal also supported the arguments raised by Mr. Sanjay Bansal and also relied upon Commissioner of Central Excise, Kolkata-II Vs. Shree Gobinddeo Glass Works Ltd. 2011 (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esentation of memorandum of appeal, but such deposit is necessary for hearing of the appeal. Since the application for waiver of pre-deposit of duty is an application filed during the pendency of appeal, any order passed on such application is an order passed in appeal by the Appellate Tribunal against which an appeal is maintainable before this Court under Section 35G of the Act. Though in Raj Kumar Shivhare s case (supra), the Hon ble Supreme Court was examining Section 35 of the Foreign Exchange Management Act, 1999 which provides for an appeal against any decision or order of the Appellate Tribunal, but the Court held that any order or decision of the Appellate Tribunal would mean all decisions or orders of the Appellate Tribunal, which are appealable to the High Court. It observed as under: 28. In Black s Law Dictionary the word any has been explained as having a diversity of meaning and may be employed to indicate all and every as well as some or one and its meaning in a given Statute depends upon the context and subject matter of Statute . The aforesaid meaning given to the word any has been accepted by this Court in Lucknow Development Authority Vs. M.K.Gupta AI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said to have been made in an appeal only. Therefore, where such an order made, it will be an order from which the appeal will lie under Section 35G of the Central Excise Act. In Auram Jewellery Export (P) Ltd. case (supra), the Allahabad High Court was considering the pari materia provisions of Sections 129B and 129E of the Customs Act, 1962. The Court held to the following effect: 11. According to us, the words, every order passed in appeal do not apparently exclude the jurisdiction of the High court in determining the question of pre-deposit as under Section 129E of the Act. Question of appeals etc. are to be governed by Chapter XV of the Act, which includes both, the final order and any order in connection with the appeal. Therefore, unless it is specifically excluded under such Chapter, we do not find any thing contrary from the plain reading of Chapter XV, particularly, Section 130 of the Act made for appeal to High Court. Had it been the case of only final order, there was no scope for the Legislature to incorporate the aforesaid words under Section 130 that every order passed in appeal is appealable, because solitary final order is required for disposing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Act cannot provide for any additional right or provision, which are inconsistent with the provision of the Act itself. The learned Trial Judge has taken the help of few provisions of the rule as well as some notifications. We think those are of no help to dilute the provision of pre deposit or the ratio of the Supreme Court decisions of the aforesaid two cases. The said observations, in fact, are not supporting the argument raised by the learned counsel for the petitioner. In J.M. Ramachandra sons case (supra), the issue examined by the Delhi High Court was doctrine of merger and when an application for condonation of delay was declined in exercise of the appellate jurisdiction of the Tribunal in respect of determination of rate of duty of customs or to the value of goods, appealable to the Hon ble Supreme Court in terms of Section 129 of the Customs Act, 1962. It was held that an order of declining condonation of delay is not appealable to the Supreme Court under Section 130E of the said Act. Even the said judgment does not address the issue raised in the present petition. Keeping in view the ratio of the judgment in Raj Kumar Shivhare s case (supra) and that of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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