Pre-deposit order of Tribunal is appealable before High Court under section 35G and accordingly, writ would not be maintainable

Excise & Customs : Since application for waiver of pre-deposit is an application filed during pendency of appeal, any order passed thereon is an order passed in appeal by Appellate Tribunal; hence, pre-deposit order of Tribunal is appealable before High Court under section 35G and accordingly, writ would not be maintainable
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[2014] 48 taxmann.com 317 (Punjab & Haryana)
HIGH COURT OF PUNJAB AND HARYANA
Surya Air Products (P.) Ltd.
v.
Union of India*
HEMANT GUPTA AND MS. RITU BAHRI, JJ.
CWP NO. 13288 OF 2012
JANUARY  15, 2013
Section 35G, read with sections 35B and 35F, of the Central Excise Act, 1944, sections 83 and 86 of the Finance Act, 1994, rules 9, 11, 28A and 28C of the CESTAT (Procedure) Rules, 1982 and sections 129A, 129E and 130 of the Customs Act, 1962 - Appeals - Maintainability of - High Court - In terms of Section 35G, every order, which is passed in appeal, is an appealable order and expression 'every order' will mean an order, which decides any of substantive rights of parties - Procedure for filing and disposal of a stay petition is mentioned in Rule 28A of CESTAT (Procedure) Rules, 1982 - An application for stay including that of application for waiver of pre-deposit of duty is an application in pending appeal - Deposit of duty is not a condition precedent before filing of an appeal; it is necessary for hearing of appeal - Since application for waiver of pre-deposit of duty is an application filed during pendency of appeal, any order passed on such application is an order passed in appeal by Appellate Tribunal against which an appeal is maintainable before High Court under section 35G [Paras 6 to 10] [In favour of revenue]
Article 226 of the Constitution of India read with sections 35B, 35F and 35G of the Central Excise Act, 1944 - Writ petition - Alternative remedy - Assessee filed writ petition challenging pre-deposit order of Tribunal - Department argued that pre-deposit order of tribunal was appealable and, therefore, writ was not maintainable - HELD : Since application for waiver of pre-deposit of duty is an application filed during pendency of appeal, any order passed on such application is an order passed in appeal by Appellate Tribunal against which an appeal is maintainable before High Court under section 35G - In view of effective alternative remedy of appeal against an order passed by Tribunal, writ jurisdiction was not to be exercised and writ was dismissed accordingly [Paras 6 to 18] [In favour of revenue]
Words and Phrases : 'Every Order passed in Appeal' as used in section 35G of the Central Excise Act, 1944