Excise & Customs : A pre-deposit order passed by Commissioner (Appeals) exercising power under section 35F, is an order passed in an appeal filed under section 35 read with section 35A and shall be appealable to CESTAT under section 35B(1)(b)
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[2014] 48 taxmann.com 318 (Punjab & Haryana)
HIGH COURT OF PUNJAB AND HARYANA
Surya Pharmaceutical Ltd.
v.
Union of India*
RAJIVE BHALLA AND DR. BHARAT BHUSHAN PARSOON, JJ.
CWP NO. 1672 OF 2013
JULY 31, 2014
Section 35B, read with sections 35, 35A and 35F, of the Central Excise Act, 1944, Article 226, of the Constitution of India, sections 85 and 86 of the Finance Act, 1994 and sections 128, 128A and 129A of the Customs Act, 1962 - Appeals - Maintainability of - Appellate Tribunal - Assessee filed writ petition before High Court challenging pre-deposit order passed by Commissioner (Appeals) -
Revenue argued that writ was not maintainable, as said order was appealable before Tribunal under section 35B(1)(b) - Assessee argued that pre-deposit order of Tribunal is not an order passed in appeal and, therefore, same is not appealable before Tribunal and hence, writ was maintainable - HELD : Power to entertain and decide an appeal and to pass final and interim orders flows from section 35 and section 35A - Section 35F, which provides for pre-deposit and empowers Commissioner (Appeals) to waive same, is integral to scheme of appellate powers conferred by said sections - Further, section 35F commences with words 'where in any appeal under this Chapter', which means that power under section 35F can only be exercised when an appeal has already been filed - Therefore, an order passed by Commissioner (Appeals) exercising power under section 35F, is an order passed in an appeal filed under section 35 read with section 35A and shall be appealable to CESTAT under section 35B(1)(b) - Writ was dismissing accordingly in view of alternate remedy and judgment in Hindustan Lever Ltd. v. CCE (Appeal) 2006 (202) ELT 177 (Mad.) was disagreed with [Paras 6 & 7] [In favour of revenue]
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[2014] 48 taxmann.com 318 (Punjab & Haryana)
HIGH COURT OF PUNJAB AND HARYANA
Surya Pharmaceutical Ltd.
v.
Union of India*
RAJIVE BHALLA AND DR. BHARAT BHUSHAN PARSOON, JJ.
CWP NO. 1672 OF 2013
JULY 31, 2014
Section 35B, read with sections 35, 35A and 35F, of the Central Excise Act, 1944, Article 226, of the Constitution of India, sections 85 and 86 of the Finance Act, 1994 and sections 128, 128A and 129A of the Customs Act, 1962 - Appeals - Maintainability of - Appellate Tribunal - Assessee filed writ petition before High Court challenging pre-deposit order passed by Commissioner (Appeals) -
Revenue argued that writ was not maintainable, as said order was appealable before Tribunal under section 35B(1)(b) - Assessee argued that pre-deposit order of Tribunal is not an order passed in appeal and, therefore, same is not appealable before Tribunal and hence, writ was maintainable - HELD : Power to entertain and decide an appeal and to pass final and interim orders flows from section 35 and section 35A - Section 35F, which provides for pre-deposit and empowers Commissioner (Appeals) to waive same, is integral to scheme of appellate powers conferred by said sections - Further, section 35F commences with words 'where in any appeal under this Chapter', which means that power under section 35F can only be exercised when an appeal has already been filed - Therefore, an order passed by Commissioner (Appeals) exercising power under section 35F, is an order passed in an appeal filed under section 35 read with section 35A and shall be appealable to CESTAT under section 35B(1)(b) - Writ was dismissing accordingly in view of alternate remedy and judgment in Hindustan Lever Ltd. v. CCE (Appeal) 2006 (202) ELT 177 (Mad.) was disagreed with [Paras 6 & 7] [In favour of revenue]
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