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M/s. Tiruchitrambalam Projects Ltd. (formerly known as Thiruchittampalam Associates India Ltd.) Versus Customs, Excise and Service Tax Appellate Tribunal, The Commissioner of Central Excise

2016 (7) TMI 472 - MADRAS HIGH COURT

Waiver of pre-deposit - tribunal directed the assessee to pre-deposit 2 crores - maintainability of writ petition - alternative appellate remedy - Held that:- To the extent that the Division Bench of this Court interpreted in Metal Weld Electrodes, the expression 'any order' to mean all orders and held that therefore, appeals are maintainable against these orders, we have no quarrel. But, the opinion expressed by the Division Bench in Metal Weld Electrodes [2013 (11) TMI 240 - MADRAS HIGH COURT] .....

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we cannot agree with the opinion expressed by the Division Bench in Metal Weld Electrodes (paragraph 81) is that the question referred to the Bench has already been answered in paragraph 80. What is stated in paragraph 81, is an opinion, which appears to have been recorded as a corollary to what was recorded in paragraph 80. But, whatever is the answer provided in paragraph 80 to the reference alone can be taken as having arisen directly for consideration before the Division Bench. It is too wel .....

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cannot be posted before Single Judges. They have to be posted only before the Division Benches dealing with tax cases. This will avoid the assessees' attempts to have two remedies before this Court as against an order, against which, even an appeal would normally lie before a Division Bench. - The grievance of the writ petitioner is that without considering any of the issues raised, the Tribunal has passed a conditional order for a predeposit. According to the writ petitioner, they are execu .....

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pondent : Mr. P. Mahadevan, SCGSC ORDER Order of the Court was made by V. Ramasubramanian , J This writ petition arises out of an order passed by the Tribunal, directing the petitioner to make a predeposit of ₹ 2 crores, as a condition for entertaining the appeal and for grant of stay. 2. Heard Mr.Joseph Prabhakar, learned counsel for the petitioner and Mr.P.Mahadevan, learned Senior Central Government Standing Counsel for the second respondent. 3. This writ petition actually went before a .....

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l is filed, it should come only before the Division Bench. Another reason why the learned Judge directed the matter to be posted before the Division Bench was the fact that the Division Bench was seized of an appeal in C.M.A.No.585 of 2016 where the question as to whether an appeal could be entertained in certain circumstances or not had been raised. This is how the writ petition has come up before us. Finding that C.M.A.No.585 of 2016, along with which the present writ petition was directed to .....

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nder Section 35G of the Central Excise Act or Section 130 of the Customs Act. 6. It was contended on behalf of the Department that appellate remedy is the only remedy and that the writ petitions were not maintainable. But, it was contended by the assessees that as against certain orders, no substantial question of law can be raised and that in such circumstances, only a writ petition could be maintained. After referring to the decision of the Supreme Court in Rajkumar Shivhare Vs. Assistant Dire .....

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er answering the reference in paragraph 80, the Division Bench held in paragraph 81 of Metal Weld Electrodes that the writ petitions are not maintainable. Therefore, a question now arises as to whether writ petitions are maintainable as against orders passed by the Appellate Authorities or the Tribunal, on applications for stay or applications for waiver of predeposit condition. 8. To the extent that the Division Bench of this Court interpreted in Metal Weld Electrodes, the expression 'any o .....

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ntainable. Therefore, the reading of Rajkumar Shivhare by the Division Bench in Metal Weld Electrodes may not be fully correct. The second reason as to why we cannot agree with the opinion expressed by the Division Bench in Metal Weld Electrodes (paragraph 81) is that the question referred to the Bench has already been answered in paragraph 80. What is stated in paragraph 81, is an opinion, which appears to have been recorded as a corollary to what was recorded in paragraph 80. But, whatever is .....

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