TMI Blog2013 (5) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... been filed challenging the interlocutory orders passed by the Customs, Excise and Service Tax Appellate Tribunal (for brevity, "the CESTAT") regarding pre-deposit of duty/penalty pending the appeals, inter alia contending that the undue hardship and prima facie case have not been considered by the Tribunal while disposing of the applications/petitions filed under Section 35-F of the Central Excise Act, 1944 (for brevity, "the Excise Act") or Section 129-E of the Customs Act, 1962 (for brevity, "the Customs Act"), which are the two provisions relating to pre-deposit of duty/penalty pending the appeals. 2. The writ petitions are filed despite their being a provision for appeal under Section 35-G relating to the Excise Act and Section 130 in relation to the Customs Act, stating that the orders under challenge passed by the CESTAT are not orders passed in the appeals, but only interlocutory orders in terms of Section 35-F of the Excise Act and Section 129-E of the Customs Act and, therefore, writ petitions under Article 226 of the Constitution of India are maintainable. 3. The above said contention is repelled and objected to by the Revenue stating that as against such interlocuto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal which is against an order passed by the Tribunal on an application for waiver of pre-deposit. The appeal shall be heard and disposed of by the Tribunal without treating these observations as a conclusive opinion of the Court on the merits of the rival contentions at the hearing of the appeal. The Appeal is disposed of in these terms. There shall be no order as to costs." ii. Similarly, in Indoworth India Ltd. v. CESTAT, Mumbai, 2010 (253) ELT 364 (Bom.), a Division Bench of the Bombay High Court comprising S.A.Bobde and P.D.Kode, JJ. declined to entertain a writ petition on the ground that an appeal alone will lie. The relevant portion of the said order reads as under: "4. ...... Section 35F under which the order for deposit has been directed to be made reads as follows: 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 the appeal, deposit with the adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise challenging an order passed by the CESTAT in an application for waiver of pre-deposit. v. However, a Division Bench of the very same High Court comprising D.V.Shylendra Kumar and H.S.Kempanna, JJ. in Hindustan Petroleum Corporation Ltd. v. Commissioner of Customs, Mangalore, 2012 (279) ELT 358 (Kar.), while deciding an appeal filed against an order passed by the CESTAT in exercise of the power under the proviso to Section 129-E of the Customs Act corresponding to Section 35-F of the Excise Act, observed as follows: "11. We are also not very convinced that in respect of an order of this nature, an appeal under Section 130A can be maintained before the High Court, which is only in a situation where the appeal involves examination of a substantial question of law which is decided erroneously by the Tribunal. ..." vi. A Division Bench of the Kerala High Court comprising C.N.Ramachandran Nair and K.Surendra Mohan, JJ. in Mohd. Fariz and Co. v. Commissioner of Customs, 2010 (260) ELT 29 (Ker.), while taking up an appeal against the order passed by the CESTAT dismissing an application for condonation of delay filed along with the appeal, was of the view that an order rejecting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rate of duty of customs or to the value of goods' so as to bar jurisdiction of this Court to entertain the appeal against the order of pre-deposit under Section 130 of the Customs Act, 1962. Accordingly, we reject the preliminary objection raised by the Revenue regarding the maintainability of the appeal before this Court." Viii. As far as our High Court is concerned, a Division Bench comprising D.Murugesan,J. (as His Lordship then was) and K.K.Sasidharan,J. in IndusInd Bank Ltd. v. The Commissioner of Service Tax (Judgment dated 24.6.2011 in C.M.A.No.1613 of 2011), while dealing with an appeal filed against the order passed by the CESTAT on an application seeking waiver of pre-deposit on service tax, declined to entertain the appeal on merits, and observed as follows: "7. ..... That apart, this being a discretionary order in nature and requires only a prima facie consideration on merits of the case, none of the substantial questions of law raised in the appeal could be considered and, consequently, the appeal could be entertained. 8. Accordingly, the civil miscellaneous appeal fails and the same is dismissed. Consequently, connected miscellaneous petition is also dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent yardsticks to entertain the case challenging the interlocutory order passed by the CESTAT. 6. It is stated by M/s.S.Venkatachalam, Mohammed Shaffiq, S.Sivanandam, S.Lokaiah, S.Jaikumar, Mr.Premkumar for M/s.King and Partridge, V.Balasubramanian, N.Viswanathan, S.Ramachandran and K.V.Subramanian, learned counsel for the petitioners as well as M/s.P.Mahadevan, Vikram Ramakrishnan, E.Vijay Anand, S.Haja Mohideen Gisthi, K.Rajasekar, V.Sundareswaran, N.Senthil Kumar, S.Thirumavalavan, T.Chandrasekaran, S.Xavier Felix, learned Standing Counsel for the respondents that a number of cases writ petitions are filed challenging the orders of the CESTAT passed in interlocutory applications in terms of Section 35-F of the Excise Act or Section 129-E of the Customs Act and in many occasions disposed of by the writ Court on merits. In some cases, there has been a direction to file appeal. It is also stated that very recently writ petitions in W.P.Nos.6245 and 6246 of 2013 have been entertained by a Bench of this Court, wherein the orders of CESTAT relating to pre-deposit were challenged. 7. Considering the manner in which the interlocutory orders passed by the CESTAT have been dealt w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. - (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2) The Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be - (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party; (b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party; ECTION [130. Appeal to High Court. - (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (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 on such question of law as is referred to in sub-section (1). (7) When an appeal has been filed before the High Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges. (8) Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall, then, be heard upon that point only by one or more of the other Judges of the High Court and such point shall be decided according to the opinion of the majority of (5) The High Court shall decide the question o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 129-B of the Customs Act. Section 35-G of the Excise Act and Section 130 of the Customs Act provide that the appeal should be on questions of law to be formulated in a decision rendered in the appeal. It would apparently mean the main issue in the appeal. 11. The question that arises for consideration is whether the interlocutory order passed by the CESTAT in terms of Section 35-F of the Excise Act or Section 129-E of the Customs Act would be an order passed on merits in the appeal. In my opinion, the interlocutory order passed under Section 35-F of the Excise Act or Section 129-E of the Customs Act considers only prima facie case and undue hardship and the CESTAT is entitled to balance the interest of the assessee and the Revenue. The main issue raised in the appeal is not decided one way or other and, therefore, it can at best be an interlocutory order not touching upon the merits of the appeal. The Acts provide for interlocutory remedy pending the appeal. The order in appeal passed under Section 35-C of the Excise Act or Section 129-B of the Customs Act goes into the merits of the contentions raised and the claim of the assessee is determined on facts by the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. (1A) The Appellate Tribunal may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (2) The Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Central Excise or the other party to the appeal:- Provided that an amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Excise Act provides the manner in which an application should be filed in the appeal. Therefore, there is a distinction between the two in the statutory provision itself. This distinction is absent in FEMA, 1999. At this juncture, it may be relevant to take note of the decision of the Apex Court in K.T.M.S.Mohd. case, supra, wherein it is observed as under: "24. Needless to emphasise that the FERA and the I.T. Act are two separate and independent special Acts operating in two different fields." As a consequence, it has to be considered as to whether the decision rendered in the case of FEMA, 1999 would be applicable to the provisions of the Excise Act and Customs Act when there is a clear distinction in the manner in which the interlocutory order should be considered and the manner in which the final order in appeal should be disposed of by the Tribunal. 16. In view of the above, the question that has to be considered is whether an order passed by the CESTAT in terms of Section 35-F of the Excise Act or Section 129-E of the Customs Act would be an order against which an appeal would lie. As stated earlier, there is enough confusion in different Courts as to how such an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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