The phrase “any order passed by the Appellate Tribunal” used in Section 35G of the Central Excise Act and Section 130 of the Customs Act is wide enough to include orders passed by the CESTAT on applications for waiver of pre-deposit.

K. Ravichandrabaabu, J.

1. All these writ petitions are placed before us for answering a reference made by a learned single Judge of this Court in his order dated 19.3.2013. Before the learned single Judge, the orders of the Customs, Excise and Service Tax Appellate Tribunal (in short Tribunal) made either in interim application for stay or application seeking for dispensation of pre-deposit, were challenged.

2. The Revenue raised a preliminary objection with regard to the maintainability of these writ petitions, by contending that as against those orders passed by the Tribunal, an appeal, either under Section 35G of the Central Excise Act or under Section 130 of the Customs Act, alone is maintainable. The Revenue, in support of such submission, relied on the decision of the Apex Court reported in 2010 (4) SCC 772 (Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement). The learned counsel for the petitioners argued that writ petition is maintainable and in some cases this Court and other High Courts entertained the writ petitions, though in some cases writ petitions were dismissed on the ground of availability of alternative remedy of filing appeal.

3. The learned Judge, after considering the rival submissions and considering the various decisions rendered by different High Courts, has observed that there is enough confusion in different Courts as to how such an interlocutory order should be dealt with and that there has to be a clarity to a person approaching the High Court as to which is the correct forum. The learned Judge after considering the decision of the Apex Court rendered in Raj Kumar Shivhare's case, also observed that it has to be considered as to whether the above decision rendered in the case of Foreign Exchange Management Act 1999 (FEMA, 1999) would be applicable to the provisions of the Central Excise Act, 1944 and the Customs Act, 1962 when there is a clear distinction in the manner in which the interlocutory order should be considered and the manner in which the final order in appeal should be disposed of by the Tribunal.

4. Thus, the learned Judge directed the Registry to place the matter before the Hon'ble Chief Justice for referring the matter to an appropriate Bench for deciding the issue as to whether the order passed by the CESTAT in terms of Section 35F of the Excise Act, 1944 or Section 129-E of the Customs Act, 1962 is appealable in terms of Section 35G of the Excise Act 1944 or Section 130 of the Customs Act, 1962. Accordingly, the matter is placed before us by the Hon'ble the Chief Justice for answering the above said reference.

5. Mr. A.K. Jayashankaran Nambiar, learned Senior Counsel appearing for the petitioner in W.P. No. 17988 of 2012 etc., has submitted as follows:-

The procedure of pre-deposit is not a procedure with regard to appeals and hence any order passed by the CESTAT on an application for waiver of pre-deposit is not an order passed in appeal. Section 35C and Section 129B of the respective enactments deal with the orders of the Appellate Tribunal and clearly indicate that only those orders alone can be passed by the Appellate Tribunal. Therefore, Section 35G and Section 130 of the respective enactments that deal with appeals to the High Court can only be seen as dealing with such orders viz., final order passed by the CESTAT and not against the interim orders. The requirement of pre-deposit is only pending disposal of the appeal and therefore it is not a condition precedent for filing an appeal. Pre-deposit procedures are separate proceedings unconnected with the appeal proceedings. CESTAT cannot dismiss the appeal for failure to comply with the order of pre-deposit. If the order of pre-deposit is not an order appealable under Section 35G/130, then the remedy lies to the parties to challenge the same under Article 226 of the Constitution of India. In support of his submissions, he relied on the following decisions:-

1. 1981 (8) ELT 679 (SC) (Navin Ch