- (1.) A preliminary objection has been raised by the Revenue relying upon the judgment of Hon'ble Supreme Court in Raj Kumar Shivhare Vs. Assisstant Director, Directorate of Enforcement, 2010 253 ELT 3 that the writ petition against an order deciding an application for waiver of condition of pre-deposit of duty is an appealable order in terms of Section 35G of the Central Excise Act, 1944 (for short 'the Act'), therefore, the present writ petition challenging an order passed by the Customs, Excise and Service Tax Appellate Tribunal (for short 'the Tribunal') is not maintainable.
(2.) Before we consider the respective arguments of the parties, certain statutory provisions of the Act as well as the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 (for short 'the Rules') need to be extracted. The same are as under: The Central Excise Act, 1944 "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 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." "35G. 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 1 st 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." Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 "28A. Procedure for filing and disposal of stay petitions (1) (a) Every application preferred under the provisions of the Acts for stay of the requirement of making deposit of any duty demanded or penalty levied shall be presented in triplicate by the appellant in person or by his duly authorized agent, or sent by registered post to the Registrar or any other officer authorized to receive memoranda of appeals, as the case may be, at the Headquarters of the Bench having jurisdiction to hear the appeal in respect of which the application for stay arises;" "28C. Procedure for filing of and disposal of Miscellaneous Application The provisions of the rules regarding the filing of stay applications shall, in so far as may be, apply to the filing of applications under this rule (mutates mutandis)."
(3.) Mr. Sanjay Bansal, learned senior counsel for the petitioner has vehemently argued that only an order of final adjudication is appealable and not each and every order passed by the Tribunal. Learned counsel for the petitioner has argued that the judgment of the Hon'ble Supreme Court in Raj Kumar Shivhare Vs. Assisstant Director, Directorate of Enforcement, 2010 253 ELT 3 is distinguishable inasmuch as in the said case, the Supreme Court was examining the provisions of Foreign Exchange Management Act, 1999, whereas Section 35 of the said Act specifically provides that any person aggrieved by "any decision or order" of the Appellate Tribunal may file appeal to the High Court, whereas under Section 35G of the Act, an appeal lies to the High Court from "every order passed in appeal" by the Appellate Tribunal. It is contended that the order for waiver of pre-deposit of duty is not an order passed in appeal, as order passed in appeal is referable only to the final adjudicatory order. In support of his arguments, Mr. Sanjay Bansal relied upon Shaw Wallace & Co. Ltd. Vs. Income Tax Appellate Tribunal, 1999 240 ITR 579, Visvas Promoters (P) Ltd. Vs. ITAT, 2010 323 ITR 114 and Lakshmi Vilas Bank Ltd. Vs. Income Tax Appellate Tribunal & others, 2010 329 ITR 564.;