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2013 DIGILAW 765 (MP)

Chouhan Construction v. Union of India

2013-07-05

B.D.RATHI, U.C.MAHESHWARI

body2013
JUDGMENT U. C. Maheshwari, J.: 1. The petitioner firm through its proprietor has filed this writ petition under Article 226/227 of the Constitution of India being aggrieved by the impugned interlocutory order dated 21-9-2012 (Ann. P.I.) passed by the respondent No. 2, Central Excise and Service Tax Appellate Tribunal (in short “the Appellate Tribunal”), on ST/Stay No. 1129/12 in ST/A No. 490/2012, whereby the prayer of the petitioner for dispensing with to deposit the entire sum made under the proviso of the Central Excise Act (in short the Act) in compliance of the order dated 14-12-2011 (Anns. P.4) passed by the Commissioner, Customs and Central Excise, Indore was allowed only in part and it/he was directed to deposit Rs. 8,00,000/- within eight weeks with a further direction that subject to deposit the aforesaid, there shall be waiver of pre-deposit of balance dues during the pendency of the appeal or six months period whichever is earlier. 2. The petitioner's counsel Shri Yogesh Chaturvedi, after taking us through the averments of the petition as well as the papers placed on record by referring the proviso of section 35(f) of Central Excise Act, 1944 (in short “the Act”), argued that on filing the appeal under, section 35 of the Act against the order of the Commissioner, Customs and Central Excise the appellant is bound to deposit the sum in accordance with the order of the subordinate authority for entertaining the appeal but under the proviso the Appellate Authority has discretion to exempt the petitioner from depositing such sum and decide the appeal on merits. Under such proviso the authority is bound to pass interlocutory order in judicial manner and not in arbitrary manner. In continuation he said that according to the case of the petitioner the alleged demand was directed by the subordinate authority for the sum, which was already deposited by the petitioner. In such premises the appellate authority by invoking the extraordinary power vested under the aforesaid proviso of section 35(f) of the Act ought to have exempted the petitioner from depositing the entire sum but contrary to this the appellate authority has decided the question arbitrarily and directed the petitioner to deposit the aforesaid sum of Rs. 8,00,000/- (Rs. Eight Lakhs), with some other direction for remaining sum as stated in Annx. P.1. 8,00,000/- (Rs. Eight Lakhs), with some other direction for remaining sum as stated in Annx. P.1. In such premises, the impugned interlocutory order of the appellate authority is not sustainable and prayed to dispense with and exempted the petitioner from depositing the entire sum in compliance of the conditions of the impugned order (Annx. P.1), by admitting and allowing this petition. In support of his contention he also placed his reliance on the following reported decisions: (i) Eicher Motors Ltd. v. Union of India, reported in 1993(66) ELT 161(Del.) (ii) Classic Credit Limited v. Appellate Tribunal for Foreign Exchange, reported in 2009 (248) ELT 181 (Del.) (iii) VIT Sea Foods v. Collector of Customs, reported in 1989 (42) ELT 220 (Ker.) (iv) Bongaigaon Refinery and Petrochem Ltd. v. Collr of C. Ex. (A) Cal., reported in 1994 (69) ELT 193 (Cal.). (v) A. B. Foot Style (P) Ltd. v. Union of India, reported in 1999 (111) ELT 684 (Cal). (vi) Visaka Industries Ltd. v. CESTAT, Chennai, reported in 2012 (283) ELT 485 (Mad.) (vii) ITC Ltd. v. Commissioner (Appeals), Cus. and C. Ex. Meerut, reported in 2005 (184) ELT 347 (All.) (viii) Viral Builders v. Commissioner of Central Excise Surat, reported in 2011 (21) STR 457 (Tri. Ahmd.). (ix) Vijay Sharma and Co. v. Commissioner of C. Ex. Chandigarh, reported in 2010 (20) STR 309 (Tri. IB) and (x) 2003 (10) SCC 121 . 3. On the other hand responding the aforesaid arguments by justifying the impugned order Ms. Anuradha Singh, counsel of the respondents, and appeared on advance copy of the petition said that the same being based on proper consideration of the factual matrix of the matter and hardship of the petitioner is in accordance with the law, it does not require any interference under the superintending jurisdiction of this Court. She further said that in view of the settled proposition of law that if any subordinate Court or the authority has passed any interlocutory order under its vested discretionary jurisdiction then the same could not be interfered under the revisional or superintending jurisdiction enumerated either under section 115 of Civil Procedure Code or under Article 227 of the Constitution of India and prayed for dismissal of this petition. She also placed her reliance on the following decisions of the Apex Court: (i) Managing Director (MIG) Hindustan Aeronautics Ltd. and anr. She also placed her reliance on the following decisions of the Apex Court: (i) Managing Director (MIG) Hindustan Aeronautics Ltd. and anr. v. Ajit Prasad Taraway, reported in AIR 1973 SC 76 . (ii) Mohd. Yunus v. Mohd. Mustaqim and ors:, reported in AIR 1984 SC 38 . (iii) State of Andhra Pradesh v. Vatsavyi Kumara Venkata Krishna Verma, reported in AIR 1999 SC 745 . (iv) Kokkanda B. Poondacha v. K. D. Ganpati and anr., reported in AIR 2011 SC 1353. 4. Having beard the counsel keeping in view their arguments, we have carefully gone through the petition along with the annexed papers so also the impugned order (Annx. P.1). 5. It is undisputed fact on record that the impugned order has been passed by the appellate authority by virtue of the proviso of section 35(f) of the Act under its vested discretionary jurisdiction. Before proceeding to consider the merits of the matter, we would like to consider the question of entertainability of this petition under Article 227 of the Constitution of India, as the same has been filed against the interlocutory order. 6. Such question was answered by the Apex Court in the matter of The Managing Director (MIG) Hindustan Aeronautics Ltd. and anr. v. Ajit Prasad Taraway, reported in AIR 1973 SC 76 , in which it was held as under: “High Court should not interfere even in the order is right or wrong or in accordance with law or not, unless it has exercised its jurisdiction illegally or with material irregularity.” Placitum. 7. Subsequent to aforesaid again in the matter of Mohd. Yunus v. Mohd. Mustaqim and ors., reported in AIR 1984 SC 38 , the Apex Court held as under: “Mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited “to seen that an inferior Court or Tribunal functions within the limits of its authority” and not to correct an error apparent from the face of the record, much less an error of law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or tribunal. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or tribunal. It will not review or re-weigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or to correct errors of law in the decision.” Placitum 8. The Apex Court has also held In the matter of Kokkanda B. Poondacha v. K. D. Ganpati and anr., reported in AIR 2011 SC 1353, in which it was held as under: “High Court could not interfere with the order of the trial Court without considering question whether said order was vitiated due to want of jurisdiction or trial Court had 'exceeded its jurisdiction or order passed by it has resulted in failure of justice.” Placitum 9. In view of the aforesaid dictum's of the Apex Court, on examining the matter the case at hand, it is apparent that the instant petition has been filed by the petitioner against, the interlocutory order of the appellate authority (constituted under the Act), under the yested discretionary jurisdiction vested by virtue of section 35(f) of the Act. 10. According to section 35(f) of the Act for filing the appeal, the appellant like the petitioner is bound to deposit the entire sum and under the proviso considering the hardship of the appellant, in the available circumstance the appellate authority has discretion to exempt dispense with the appellant from depositing such sum with or without imposing conditions. It is apparent that considering the same out of huge sum the petitioner has only been directed to deposit a lesser sum i.e. Rs. 8,00,000/- (Rs. Eight Lakhs), with some conditions enumerated in the impugned interlocutory order. In such premises, it could not be said that the Appellate Court has not considered the matter in judicial manner for passing the interlocutory order. Pursuant to it, the arguments advanced by the petitioner's counsel that the impugned order being arbitrary is not sustainable has not appealed us. 11. We have also carefully gone through all the case laws cited by the petitioner's counsel but out of them various cases have been decided in the cases filed against the final order and not against the interlocutory orders, which is not the situation here and some of the cited case of other High Courts being distinguishable on facts from the case at hand, are not helping to the petitioner. 12. In view of the aforesaid discussion, firstly this petition being filed against the interlocutory order passed by the appellate authority under its vested discretionary jurisdiction, could not be interfered under the superintending or revisional jurisdiction of this Court and deserves to be dismissed. Secondly, the impugned interlocutory order has not been found to be improper or contrary to the proviso of section 35(f) of the Act and in such premises, we have not found any perversity, illegality, arbitrariness or anything against the propriety of law in the impugned interlocutory order. Consequently, this petition being devoid of any merits is hereby dismissed at the stage of motion hearing. Petition dismissed.