TMI Blog2013 (11) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... the statute, which decision has been discussed supra. Appellate remedy is available against those orders u/s 35G of the Central Excise Act, 1944 or u/s 130 of the Customs Act, 1962 - all the petitions are liable to be dismissed on the ground of maintainability - all the petitions are dismissed as not maintainable, however by giving liberty to the petitioners to file appeal under Section 35G of the Central Excise Act, 1944 or under Section 130 of the Customs Act, 1962, wherever it applies - writ petitions are dismissed only on the ground of maintainability, the petitioners are entitled to canvass the correctness of the order passed by the Tribunal in their appeal by raising all the grounds as well as the substantial questions of law available to them – liberty is granted to file appeal, the parties are directed to maintain status quo as on date. - W.P.Nos.24615, 13468, 23799 to 23801, 25303, 28613 to 28616, 22029, 17988, 11819, 28770 , 27425, and 28299 of 2012, W.P.Nos. 14461, 22077, 24921, 25209, 25475, 1682 17278, 21298, 21299, 23020, 23021, 26283, 20965, 20966 , 26120, 27268 and 27331 of 2 - - - Dated:- 30-10-2013 - N. Paul Vasanthakumar And K. Ravichandrabaabu,JJ. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l should be disposed of by the Tribunal. 4. Thus, the learned Judge directed the Registry to place the matter before the Hon'ble Chief Justice for referring the matter to an appropriate Bench for deciding the issue as to whether the order passed by the CESTAT in terms of Section 35F of the Excise Act, 1944 or Section 129-E of the Customs Act, 1962 is appealable in terms of Section 35G of the Excise Act 1944 or Section 130 of the Customs Act, 1962. Accordingly, the matter is placed before us by the Hon'ble the Chief Justice for answering the above said reference. 5. Mr.A.K.Jayashankaran Nambiar, learned Senior Counsel appearing for the petitioner in W.P.No. 17988 of 2012 etc., has submitted as follows:- The procedure of pre-deposit is not a procedure with regard to appeals and hence any order passed by the CESTAT on an application for waiver of pre-deposit is not an order passed in appeal. Section 35C and Section 129B of the respective enactments deal with the orders of the Appellate Tribunal and clearly indicate that only those orders alone can be passed by the Appellate Tribunal. Therefore, Section 35G and Section 130 of the respective enactments that deal with ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal under Section 35B. The same analogy is to be applied even in respect of the appeals to be filed before the High Court. The other High Courts which followed Raj Kumar Shivhare's case have not considered the scheme of the relevant Acts. There can be only one appeal under Section 35G or 130 and not many appeals at many points of time. It is impossible that any substantial question of law would arise out of an interlocutory order that deals only with prima facie nature of the case. A substantial question of law would arise only from the order which finally decides the rights of the parties in controversy. In support of his submissions, the learned Senior Counsel relied on the following decisions:- 1. AIR 1979 SC 1132 (S.Mohan Lal Vs. R.Kondiah) 2. 2010 (323) ITR 114 Madras (Visvas Promoters (P) Ltd., Vs. Income Tax Appellate Tribunal and another) 3. 2012 (279) ELT 358 (Hindustan Petroleum Corporation Ltd., Vs. Commissioner of Customs, Mangalore) 4. 2009 (236) ELT 12 (Union of India Vs. Classic Credit Ltd.,) 5. 2011 (263) ELT 28 Bom (Videocon Industries Ltd., Vs. Commissioner of Customs, Aurangabad) 7. Mr. Shaffiq, learned counsel appearing for the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsels for Revenue. His submissions are as follows:- Clause 136 of Finance Bill reveals the intention. The decision rendered by the Apex Court in Raj Kumar Shivhare's case would squarely apply to the cases involving Central Excise Act, 1944 as well as Customs Act, 1962 since FEMA , Central Excise Act and Customs Act are pari materia same. Right of appeal against any order is conferred under the enactment itself and therefore filing of writ petitions against the interim orders cannot be entertained. When an alternative remedy is available, no writ would lie. In support of his submissions the learned counsel relied on the following decisions:- 1. 2011 (272) ELT 11 (All.) (Obeetee Textiles Pvt. Ltd., Vs. Commissioner of Central Excise) 2. 2009 (235) ELT 454 Madras (Sree Nithyakalyani Textiles Ltd., Vs. Commissioner of C.EX. Madurai) 3. 2009 (239) ELT 226 (Varadhalakshmi Mills Ltd., Vs. Commissioner of C.EX. Madurai) 4. 2010 (251) ELT 365 (All) (Auram Jewellery Export (P) Ltd., Vs. Union of India) 5. 2010 (262) ELT 236 (Kissan Gramodyog Sansthan Vs. Commissioner of C.Ex., Kanpur) 6. An unreported decision of Punbaj and Haryana High Court made in C.W.P.No. 132 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Appellate Tribunal against such order- (a) a decision or order passed by the Commissioner of Central Excise as an adjudicating authority; (b) an order passed by the Commissioner (Appeals) under section 35A; (c) an order passed by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963 ) (hereafter in this Chapter referred to as the Board) or the Appellate Commissioner of Central Excise under section 35, as it stood immediately before the appointed day; (d) an order passed by the Board or the Commissioner of Central Excise, either before or after the appointed day, under section 35A, as it stood immediately before that day: Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect' of any order referred to in clause (b) if such order relates to,- (a) a case of loss of goods, where the loss occurs in transit from a factory to a warehouse or to another factory, or from one warehouse to another, or during the course of processing of the goods in a warehouse or in storage, whether in a factory or in a warehouse; ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-section (6) of Section 35B deals with the format of appeal to be filed before the Tribunal. Under the said sub-section, it is stated that an appeal to the Appellate Tribunal should be filed in the prescribed form. Rule 6 of Central Excise (Appeals) Rules 2001 deals with the Form of appeal etc., to the Appellate Tribunal, wherein it is stated that an appeal under sub-section (1) of Section 35B shall have to be made in Form No. E.A-3. Form No.E.A.3 is shown under Annexure 38 of Annexures to CBEC's Excise Manual of Supplementary Instructions and the same is extracted hereunder:- ANNEXURE-38 Form No. E.A.-3 [See Rule 6] Form of Appeal to Appellate Tribunal under section 35B of the Act In the Customs, Excise and Gold (Control) Appellate Tribunal Appeal No........................of....................2001............ ................................................................................Appellant. Vs .........................................................................................Respondent. 1. The designation and address of the authority passing the order appealed against. 2. The number and date of the order appealed agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hindi) and should set forth, concisely and under distinct heads, the grounds of appeal without any argument or narrative and such grounds should be numbered consecutively. 4. The fee of ₹ 200.00 required to be paid under the provisions of the Act shall be paid through a crossed bank draft drawn in favour of the Assistant Registrar of the Bench of the Tribunal on a branch of any nationalised bank located at the place where the Bench is situated and the demand draft shall be attached to the form of appeal. (emphasis supplied) 18. A close scrutiny of the above Form No. E.A-3 would show that Sl.No.10 of the said Form requires a statement from the appellant as to whether duty or penalty is deposited, if not, whether any application for dispensing with such deposit has been made . It further requires that if such duty or penalty is deposited, a copy of the challan under which the said deposit was made, shall have to be furnished along with the appeal. Thus, it is manifestly clear that the duty or penalty against which such an appeal is filed, has to be mandatorily deposited along with the appeal by enclosing the challan in proof of the same or it should be stated by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing. Explanation. For the purposes of this section duty demanded shall include, (i) amount determined under section 11D; (ii) amount of erroneous Cenvat credit taken; (iii) amount payable under rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere the subject goods are not under the control of Central Excise authorities, the deposit have to be made as contemplated under Section 35F . In other words, if the subject goods are under the control of Central Excise authority and has not reached the hands of the assessee, there is no necessity for making any such pre-deposit. The prime intention of the legislation of Section 35F, therefore, is to safeguard the interests of revenue. However, if the appellant pleads some hardship, then the same has to be considered and ultimately a decision has to be taken as to whether the pre-deposit has to be dispensed with subject to certain conditions and by applying the said twin test. By exercising the power vested under the first proviso, the Commissioner (Appeals) or the Appellate Tribunal shall pass orders on the application seeking for dispensation of pre-deposit, either by directing the appellant to deposit the duty or penalty in full or in lesser percentage by taking note of the hardship as well as the interests of the Revenue. As and when any such orders are passed, more particularly, by the Tribunal, the same are being challenged before the High Courts, mostly by filing writ petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lating, 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; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (2A) The High Court may admit an appeal after the expiry of the period of one hundred and eighty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , any order passed by the Appellate Tribunal . While the words in appeal are used in sub-section (1), the same are conspicuously absent in sub-section (2). Likewise, instead of the word every , the word any is used under sub-section (2). No doubt, under sub-section (1), it is stated that such appeal shall lie before the High Court only if it is satisfied that the case involves a substantial question of law. However, when we peruse sub-section (2), though it specifically contemplates filing of an appeal against any order passed by the Appellate Tribunal , still such appeal under this sub-section shall have to be filed only in the form of a memorandum of appeal precisely stating therein the substantial question of law. Thus, it could be seen that both sub-section (1) and sub-section (2) are not intending with same kind of appeals before the High Court against the same kind of orders of the Tribunal. However, both the appeals are maintainable only when they involve a substantial question of law. 28. A question may arise as to whether sub-section (2) can be treated as an independent provision of sub-section (1) and whether is it not the procedure explained for filing an appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nactments. Normally courts will take aid from the decisions of superior courts while interpreting a particular word or phrase in an enactment. Such exercise can not be found fault with unless an express restriction is made in the said decision itself. Therefore, the phrase any order is to be construed as all orders of the Appellate Tribunal . In our considered view, such interpretation of the Apex Court, has to be applied with all force even in respect of other enactments wherever such phrase is used, unless an express contrary intention is provided in those enactments itself. 30. Here in this case, the relevant enactments are Central Excise Act, 1944 and Customs Act, 1962. In both these enactments, the phrase used under sub-section (1) of Section 35G and 130 of those enactments respectively is every order passed in appeal by the Appellate Tribunal. If any is to be construed as all as held in Rajkumar Shivare's case, it goes without saying that every also should have the same meaning. Further, the phrase in appeal cannot be confined to mean that only the final orders passed in the appeal. If the final order alone was intended as an order to be appealed against u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; SECTION 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 customs 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. (2) The Commissioner of Customs 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) fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her under clauses (a) to (c). Therefore, in our considered view, no words are used in these provisions of law either loosely or unintentionally. The legislature at its wisdom thought fit to enlarge the scope of appeal by providing sub-section (2) with a specific expression any order passed by the Appellate Tribunal Thus, it is crystal clear that even as against the interim orders passed by the Appellate Tribunal, a remedy of filing of an appeal is always available under Section 35G and 130 of the respective Acts. 34. No doubt that both the appeals, one against the final order and the other against interim order, can be filed only if they involve a substantial question of law. Why the legislature thought fit to impose such a condition is a crucial question that needs to be answered at this juncture. We have already discussed the scheme of both the enactments. The appeal before the Appellate Tribunal is either filed as a second appeal, if it is an appeal against the order made by the Commissioner of Appeals or as a first appeal if it is filed against the order made by the Commissioner himself as adjudicating authority. At this juncture, it is to be noted that in both these cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal is maintainable against such orders before the High Court under Section 35G or 130 of respective Act. 38. No doubt, mostly, writ petitions alone were filed before various High Courts of this Country against the pre-deposit orders made by the Tribunal and they were entertained till the decision of the Apex Court was made in Raj Kumar Shivhare's case. No other decisions rendered by the Apex Court is placed before us, either taking a contrary view or expressly limiting the scope of applicability of the above decision to the other enactments. The only dispute that is raised by the petitioners in these cases is that the said decision was made under FEMA, 1999 and that the appeal provision under Section 35 of the FEMA, 1999 is totally different and distinguishable from the appeal provisions under Section 35G of the Central Excise Act and 130 of the Customs Act and hence the ratio laid down in that case is not applicable to the present cases. 39. We do not agree with the above contentions. We have already discussed in detail about the scope and ambit of Section 35G and 130 of the respective Acts. We have also found that sub-section (2) of Section 35G and 130 of respectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35 of FEMA, the legislature has conferred a right of appeal to a person aggrieved from `any' `order' or `decision' of the Appellate Tribunal. Of course such appeal will have to be on a question of law. In this context the word `any' would mean `all'. 26. In the instant case also when a right is conferred on a person aggrieved to file appeal from `any' order or decision of the Tribunal, there is no reason, in the absence of a contrary statutory intent, to give it a restricted meaning. Therefore, in our judgment in Section 35 of FEMA, any `order' or `decision' of the Appellate Tribunal would mean all decisions or orders of the Appellate Tribunal and all such decisions or orders are, subject to limitation, appealable to the High Court on a question of law. 27.In a case where right of appeal is limited only from a final order or judgment and not from interlocutory order, the Statute creating such right makes it clear [See Section 19 of the Family Courts Act, 1984] which is set out below: ;(19). Appeal (1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground of lack of territorial jurisdiction. 42. The above findings rendered by the Apex Court, in fact, answer all the queries raised by the petitioners herein. Thus, it is clear that unless there is a specific bar in the statute itself against filing appeal against interlocutory orders or there is an express provision saying only a final order of the Tribunal is appealable, the scope of filing appeal contemplated under Section 35G and 130 cannot be narrowed down or restricted as contended by the petitioners by judicial interpretation. At paragraph 29, the Apex Court has categorically observed that when the language of the statute is clear regarding the nature of the order from which right of appeal has been conferred, no statutory interpretation is warranted either to widen or restrict the same. 43. In fact, the Apex Court has compared Section 19 of the Family Courts Act , 1984 with that of Section 35 of FEMA to observe so. Therefore, the petitioners are not right in saying that the above decision rendered by the Apex Court made in respect of FEMA cannot be applied or compared with the appeal provisions under the Central Excise Act and Customs Act. 44. Further, while con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erim orders of pre-deposit, the appeal alone is maintainable and not a writ petition. In fact the issue before the Apex Court was as to whether a writ petition is maintainable against an order of the Tribunal made in the pre-deposit application. A bare perusal of the facts of the Raj Kumar Shivhare's case would show that the Tribunal therein refused to dispense with the pre-deposit of penalty by the appellant viz., Raj Kumar Shivhare. Challenging the said order of the Tribunal, a writ petition was filed before the High Court, Delhi. A preliminary objection was raised by the Revenue that the High Court of Delhi did not have territorial jurisdiction to decide the matter. Accepting the said objection, the High Court of Delhi dismissed the writ petition on the ground that it lacks territorial jurisdiction. The said order of the High Court was challenged by the appellant before the Hon'ble Supreme Court. The Apex Court, while dismissing the appeal has observed at paragraphs 9, 10,11,12 and 44 as follows:- 9; Though High Court dismissed the writ petition on the issue of territorial jurisdiction, it missed a rather fundamental issue which is discussed hereunder. 10. At the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in Munshi Ram v. Municipal Committee, Chheharta2. In the said decision, this Court was pleased to observe that: (SCC p. 88, para 23) 23. when a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all the other forums and modes of seeking [remedy] are excluded. 9. A Bench of three learned Judges of this Court in Titaghur Paper Mills Co. Ltd. v. State of Orissa3 held: (SCC p. 440, para 11) 11. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed. 10. In other words, existence of an adequate alternative remedy is a factor to be considered by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a remedy in the form of a right of appeal under the statute, that remedy must be exhausted first. The order passed by the learned Single Judge, in our opinion, ought not to have been interfered with by the Division Bench of the High Court in the appeal filed by the respondent assessee. 49. The Division Bench of this court in the decision reported in 2005 (2 ) MLJ 246 (M/s.Nivaram Pharma Private Limited Vs. The Customs, Excise and Gold (Control), Appellate Tribunal, South Regional Bench, Madras and Others) has observed that a writ petition is not maintainable when there is a statutory remedy of appeal available more particularly in fiscal matters. The relevant pragraphs are extracted hereunder:- 3. The writ petition had been filed before the learned single Judge against the order of the CEGAT dated 09.07.1997. 4. We are surprised that this writ petition was entertained at all. There was a clear alternative remedy against the order of the CEGAT dated 09.07.1997 by means of filing a Reference Application before the CEGAT under Section 35G(1) of the Central Excise Act (hereinafter referred to as the Act) and if that application was rejected by the CEGAT there was a second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be strictly construed is well settled. It is equally trite that the intention of the Legislature is primarily to be gathered from the words used in the statute. Once it is shown that an assessee falls within the letter of the law, he must be taxed however great the hardship may appear to the judicial mind to be. 26. On the principles of interpretation of taxing statutes, the following passage from the opinion of Late Rowlatt, J. in Cape Brandy Syndicate Vs. Inland Revenue Commissioners has become the locus classicus and has been quoted with approval in a number of decisions of this Court: ....in a taxing act, one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. 27. In Commissioner of Sales Tax, Uttar Pradesh Vs. The Modi Sugar Mills Ltd. (AIR 1961 SC 1047), J.C. Shah, J. observed thus: 11 ..... In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The court must lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n intended but what has been said. 18. It is the bounden duty of the court to infer and gather the intention of the legislature, before proceeding to interpret a statute. The function of the Courts is only to expound and not to legislate. The Courts have to look essentially to the words of the statute. The legislative intention i.e., the true or legal meaning of an enactment in the light of any discernible purpose or object, which comprehends the mischief and its remedy, to which enactment is directed. This formulation later received approval of the Supreme Court in Ruma Aggarwal Vs. Anupam, 2004 (3) SCC 199; AIR 2004 (SC) 1418. The Courts cannot interpret a statute in the way they have developed the common law. Even though the Courts possess powers to lay down common law principles, they cannot exercise such powers in respect of statutes. 19. Intention of the Legislature is a common, but very slippery phrase, which, if popularly understood, may signify anything from the intention embodied in enactment to speculative opinion as to what the legislature would have meant, although there has been omission to enact it. A note of caution is also there, when the language of the legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mind. 55. It is contended by the learned counsel appearing for the petitioners that sub-section (2) of Section 35G and 130 of the respective Acts is only procedural; whereas sub-section (1) alone is a substantive provision for filing an appeal before this Court. Therefore, they contend that sub-section (2) cannot have an independent scope. We have already discussed in detail about these two provisions viz., sub-section (1) and sub-section (2) of the relevant appeal provisions and found that the intention of the legislature is not one and the same in respect of both these sub-sections. Needless to say that a procedural provision can only explain the substantive provision and cannot expand or enlarge its scope. In other words, a procedural provision has to simply explain as to how an appeal contemplated in the substantive provision has to be filed. In this case, it is not so. Sub-section (2) is not simply explaining only the procedure of filing appeal. On the other hand, it specifically says against which order such appeal would lie. If the argument of the learned counsels has to be accepted in this aspect, then sub -section (2) need not have the phrases any order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58. Considering all these facts and the position of law as discussed supra, we are of the view that the contention of the petitioners that granting of short time to comply with the pre-deposit orders would prevent them from filing an appeal before the High Court cannot be countenanced. Needless to say that prescribing a period of limitation for filing an appeal does not mean or be construed that within such period of limitation, the said order cannot be put into operation unless a statutory bar is provided against doing so. Further, the party intends to file appeal need not wait till the last date of limitation to file appeal. 59. A decision of the Hon'ble Supreme Court reported in 1979 (2) SCC 616 (S.Mohan Lal Vs. R.Kondia) is relied on by the petitioners to contend that a decision of one enactment cannot be applied to another enactment. A bare perusal of the above said decision would show that the Apex Court has only observed that the word business must be interpreted in the context of statute in which it occurs and not in the context of other statutes or in the manner alien to the context of the statute concerned. We do not think that such decision is in any way helpful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not find that the above decision is helping the petitioners in any manner in respect of the issue involved in these cases. 63. 2010 (10) SCC 744 (Competition Commission of India Vs. Steel Authority of India Limited and another) is cited to contend that in the absence of any specific provision creating a right in a party to file an appeal, such right can neither be assumed nor inferred in favour of the party. There is no quarrel about this proposition. In the very same decision, the Apex Court at paragraph 52 has observed as follows:- 52. A statute is stated to be the edict of Legislature. It expresses the will of Legislature and the function of the Court is to interpret the document according to the intent of those who made it. It is a settled rule of construction of statute that the provisions should be interpreted by applying plain rule of construction. The Courts normally would not imply anything which is inconsistent with the words expressly used by the statute. In other words, the Court would keep in mind that its function is jus dicere, not jus dare. The right of appeal being creation of the statute and being a statutory right does not invite unnecessarily liberal or s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appeal at the initial stage. As the issue before this Court is not similar to the issue involved in the above said case, the same is not relevant for consideration. 68. 2003 (8) SCC 50 (State of Gujarat Vs.Salimbhai Abdulgaffar Shaikh and Others) is cited to contend that what the word appeal would mean. At paragraph 10 of the said decision, the Apex Court has observed that a proceeding undertaken to have a decision reconsidered by bringing it to a higher authority is also an appeal. 69. In the decision reported in 2007 (6) SCC 769 (Ambica Industries Vs. Commissioner of Central Excise), the Apex Court has considered as to which is the appropriate High Court to entertain an appeal where the first forum was located in a State other than the State where the Appellate Tribunal was located . In our considered view, such decision is not with reference to the issue on hand and therefore, the same is not helping the petitioner in any manner. 70. 240 ITR 579 Cal (Shaw Wallace Co., Ltd., Vs. Income Tax Appellate Tribunal) is cited to contend that the order passed without jurisdiction can be quashed in writ proceedings even if there is an alternate remedy . There is no qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 38(1) provided it affects some right or liability of any party. Therefore, the above decision is not helping the petitioner in any manner. 73. 2012 (283) ELT 321 SC (Columbia Sportswear Co., Vs. Director of Income Tax, Bangalore) is cited to contend that Advance Ruling of the Authority has to be challenged before the High Court under Articles 226 and/or 227 of the Constitution of India. The issue before the Apex Court in that case is as to whether the Authority under Advance Ruling is a Tribunal within the meaning of Articles 136 and 227 of the Constitution of India and whether the Authority has a duty to act judicially and is amenable to writ jurisdiction. The Apex Court has held that such Authority is a Tribunal within the meaning of expression in Articles 136 and 227 of the Constitution of India and is a body acting in judicial capacity. We do not think that the issue in that case before the Apex Court has got any relevance to the issue before us. Therefore, the said decision is also not relevant for consideration. 74. Per contra, the learned counsels appearing for the Revenue cited various decisions in support of their submissions, which are discussed hereund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le against these pre-deposit orders and as we have held in this reference that appellate remedy is available against those orders under Section 35G of the Central Excise Act, 1944 or under Section 130 of the Customs Act, 1962, we find that all these writ petitions are liable to be dismissed on the ground of maintainability. Accordingly, all the writ petitions are dismissed as not maintainable, however by giving liberty to the petitioners to file appeal under Section 35G of the Central Excise Act, 1944 or under Section 130 of the Customs Act, 1962, wherever it applies. It is made clear that as we are dismissing the writ petitions only on the ground of maintainability, the petitioners are entitled to canvass the correctness of the order passed by the Tribunal in their appeal by raising all the grounds as well as the substantial questions of law available to them. As we are inclined to dismiss these writ petitions without considering the contentions on merits and by granting liberty to file appeal, the parties are directed to maintain status quo as on date for a period of three weeks from today. Consequently, the connected M.Ps. are closed. No costs. - - TaxTMI - TMITax - Central ..... X X X X Extracts X X X X X X X X Extracts X X X X
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