A.K.R. Poly Industries vs The Assistant Commissioner of Central Excise and Others

R. Sudhakar, J—In all these writ petitions, the challenge made by the respective petitioner is in relation to the orders passed by the Customs, Excise and Service Tax Appellate Tribunal either in the interim application for stay or in the application seeking for dispensation of pre-deposit.

Earlier, when similar matters were listed before a learned single Judge of this Court, on reference by the learned single Judge, the matter was placed before a Division Bench of this Court. Before the Division Bench, the Revenue raised a preliminary objection with regard to the maintainability of the writ petitions contending that as against the orders of the Tribunal, an appeal under Section 35-G of the Central Excise Act or under Section 130 of the Customs Act alone is maintainable. In support of such a stand, the judgment of the Supreme Court in Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement and Another, (2010) 253 ELT 3 : (2010) 4 JT 54 : (2010) 4 SCC 772 : (2010) SCR 608 was relied upon. Taking note of all the contentions advanced by the parties, the Division Bench, by order dated 30.10.2013, in W.P. Nos. 24615 of 2013, etc. (Batch) (M/s. Metal Weld Electrodes v. CESTAT), held that since there is an appellate remedy available under Section 35-G of the Central Excise Act or Section 130 of the Customs Act, the writ petitions are liable to be dismissed as not maintainable. However, the Division Bench granted liberty to the petitioners to file appeal under Section 35-G of the Central Excise Act or Section 130 of the Customs Act, wherever applicable. The relevant portion of the order of the Division Bench is extracted hereinbelow for better clarity:--

"80. Thus, by considering all the above facts and circumstances, we answer the reference as follows:--

The order passed by the CESTAT in terms of Section 35F of the Central Excise Act, 1944 or Section 129-E of the Customs Act, 1962, is appealable in terms of Section 35-G of the Excise Act, 1944 or Section 130 of the Customs Act, 1962.

Since all these writ petitions are filed by contending that there is no appellate remedy available 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 these 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 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."

In the above backdrop, these matters are listed today before this Court.

Heard the learned counsel appearing on either side and perused the materials available on record as well as the judgment of this Court in Metal Weld Electrodes case (supra).

It is fairly conceded by the learned counsel appearing for the petitioners that these matters are squarely covered by the decision of this Court in Metal Weld Electrodes case (supra) and, therefore, it is submitted that this Court may also pass similar orders in these petitions as well.

In view of the above stated position, these petitions also being similar in nature to the one decided by the Division Bench in Metal Weld Electrodes case (supra), following the said judgment, this Court holds that these petitions are not maintainable and, accordingly, they are liable to be dismissed.

Accordingly, these writ petitions are dismissed as not maintainable. However, liberty is granted to the petitioners to file appeal under Section 35G of the Central Excise Act or Section 130 of the Customs Act, wherever it is applicable. It is further made clear that as the present 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 substantial questions of law available to them. Consequently, connected miscellaneous petitions are closed. However, in the circumstances of the case, there shall be no order as to costs.