Stay order of CESTAT - Appeal or Writ? - AP High Court follows Madras
DDT 2225 - 06.11.2013 carried a detailed analysis on the subject. The Madras High Court had in Metal Weld Electrodes, Chennai Vs. CCE - 2013-TIOL-865-HC-MAD-CESTAT held that orders of the CESTAT in terms of Section 35F of the Central Excise Act, 1944 or Section 129-E of the Customs Act, 1962 are appealable in terms of Section 35G of the Excise Act, 1944 or Section 130 of the Customs Act, 1962. So, the writ petitions were dismissed.
Recently the Andhra Pradesh High Court followed the Madras High Court decision and dismissed a writ petition, as the remedy was ‘appeal'.
In this interesting case, the CESTAT had ordered pre-deposit of around Rs.30 Crores. - 2013-TIOL-1779-CESTAT-BANG on 10.07.2013. Against this order, the assesse filed a writ in the AP High Court. The AP High Court on 13.11.2013 - dismissed the writ petition holding that the remedy was ‘appeal' against the CESTAT order and not writ. The High Court however gave ten days time to appeal.
The assesse filed an appeal on 21.11.2013 and prayed for interim order of waiver of pre-deposit. On 22.11.2013, the High Court refused to pass such order as it would amount to disposal of the main appeal itself. However, the High Court passed an interim order that the appeal before the Tribunal should be kept on record and should not be dismissed till the hearing of this appeal.
Now, see the strange situation.
As per the CESTAT Stay Order, the party is required to deposit about Rs. 30 Crores. If this is not deposited, CESTAT can dismiss the appeal, but as per the High Court order, CESTAT should not dismiss the appeal. But and this is the real BUT, the Department is not barred from recovering the whole demand.
Appeal or writ, misery is writ large on the face of the assessee!