Case Note & Summary
The petitioner, M/s Indoworth India Ltd., a company incorporated under the Indian Companies Act, 1956, filed a writ petition before the Bombay High Court, Nagpur Bench, challenging an order passed by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) under Section 35F of the Central Excise Act, 1944. The Tribunal had directed the petitioner to deposit approximately half of the duty demanded, i.e., Rs. 4 crores, as a pre-condition for hearing the appeal. The petitioner sought to quash this pre-deposit order. The respondents, including the Commissioner of Customs & Central Excise, raised a preliminary objection regarding the maintainability of the writ petition, arguing that a statutory appeal lies to the High Court under Section 35G of the Central Excise Act against every order passed in appeal by the Tribunal. The respondents relied on the Madras High Court judgment in Nivaram Pharma Pvt. Ltd. v. CEGAT, Madras, which held that writ petitions should not be entertained if they result in short-circuiting statutory remedies. The petitioner's counsel contended that the pre-deposit order under Section 35F is not an order passed in appeal but a pre-condition for preferring an appeal, and thus not appealable under Section 35G. The Court analyzed the language of Section 35G(1), which provides for an appeal to the High Court from every order passed in appeal by the Appellate Tribunal. The Court reasoned that the pre-deposit order under Section 35F is an order made in the course of the appeal and is therefore an order passed in appeal. Consequently, the statutory remedy of appeal under Section 35G is available. The Court held that the writ petition is not maintainable in view of the alternative efficacious remedy. The petition was dismissed, and the petitioner was directed to avail the remedy of appeal under Section 35G. The Court also noted that the petitioner may seek interim relief in the appeal.
Headnote
A) Constitutional Law - Writ Jurisdiction - Alternative Remedy - Maintainability of Writ Petition - Central Excise Act, 1944, Sections 35F and 35G - The petitioner challenged a pre-deposit order under Section 35F before the High Court under Article 226. The respondent raised a preliminary objection that a statutory appeal under Section 35G is available against every order passed in appeal by the Tribunal. The Court held that the pre-deposit order is an order passed in appeal and thus appealable under Section 35G. The writ petition was dismissed as not maintainable, directing the petitioner to avail the alternative remedy of appeal. (Paras 3-5)
Issue of Consideration
Whether a writ petition under Article 226 is maintainable against an order passed by the Appellate Tribunal under Section 35F of the Central Excise Act, 1944 directing pre-deposit of duty, when a statutory appeal lies under Section 35G of the Act.
Final Decision
The writ petition is dismissed as not maintainable in view of the alternative remedy of appeal under Section 35G of the Central Excise Act, 1944. The petitioner is at liberty to avail the remedy of appeal under Section 35G and may seek interim relief in that appeal.
Law Points
- Writ petition not maintainable when statutory remedy of appeal is available
- Pre-deposit order under Section 35F is an order passed in appeal under Section 35G
- Alternative remedy must be exhausted before invoking writ jurisdiction
