Kinship Services (India) Pvt. Ltd. vs Commr. of C. Ex. & Cus.

P.R. Ramachandra Menon, J.—The petitioner has approached this Court with the following prayers :

"(i) to call for the records of the case leading to the issue of Ext. P4 stay order passed by the 2nd respondent and to quash the same by the issue of Writ of certiorari or any other appropriate writ, order or direction.

(ii) to stay all the proceedings for recovery of the demand as per adjudication order Ext. P1 dated 1-3-2013 and the operation of stay order Ext. P4, pending disposal of the writ petition; and

(iii) to grant such other and further reliefs as this Hon''ble Court may deem fit and proper in the facts and circumstances of the case, including the cost of these proceedings to the petitioner."

In the course of the proceedings, it is brought to the notice of this Court that the appeal filed by the petitioner before the concerned authority has already been dismissed for non-satisfaction of the pre-deposit as ordered by the appellate authority/Tribunal vide Ext. P5 order dated 10-3-2014, a copy of which has already been produced along with I.A. 4422 of 2014.

A detailed counter affidavit has been filed on behalf of the first respondent/the Commissioner of Central Excise, pointing out the facts and figures and also the relevant provisions of law. It is brought to the notice of this Court that the remedy of the petitioner is to file an appeal, by virtue of specific mandate under Section 35G of the Central Excise Act and not a writ petition under Article 226 of the Constitution of India. The decision rendered by the Apex Court in Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement and Another, is also sought to be relied on as to the scope of the words ''any order'', to be reckoned as "all orders". Though the said decision was rendered with reference to the provisions of FEMA, 1999, the same is equally applicable to the context herein as well, submits the learned Standing Counsel.

The decision rendered by the Division Bench of the Madras High Court in M/s. Metal Weld Electrodes and Metro Trading Company (Electrodes) P. Ltd. Vs. The Customs, Excise and Service Tax and The Commissioner of Central Excise, with reference to the very same provision i.e. Section 35G of the Central Excise Act is brought to the notice of this Court, where the issue has been dealt with in detail. Similar view has also been taken by the Andhra Pradesh High Court as well. The learned Standing Counsel brought to the notice of this Court that a similar view has already been taken by this Court as well, as per the decision in W.P.(C) 4399/2014 (as per judgment dated 13-2-2014).

After hearing both the sides, this Court finds that the proper remedy of the petitioner is to avail the statutory remedy by way of appeal and as such, this writ petition is not maintainable. Considering the persuasive submission made by the learned Senior Counsel for the petitioner, this Court finds that, in view of the turn of events, the petitioner could be given some breathing time to effect the deposit so as to avail the statutory remedy.

In the said circumstance, the petitioner is granted a further period of ''six'' weeks from the date of receipt of a copy of the judgment to effect the pre-deposit, as ordered by the appellate Forum, upon which the appeal preferred by the petitioner shall be considered and entertained on merits. The recovery proceedings shall be kept in abeyance till such time. So as to facilitate such exercise, Ext. P5 order passed by the appellate authority will stand set aside, subject to satisfaction of the pre-deposit as aforesaid. It will be open for the petitioner to pursue the remedy in terms of the provisions of Section 35G of the Central Excise Act. The writ petition is disposed of.