Stay order of CESTAT - Appeal or Writ?
YOU are aggrieved by a Stay order of the Tribunal - suppose the Tribunal asked you to pre-deposit the duty and interest (as it has done in many cases recently). Now what is your remedy, especially if you have no money to deposit?
Can you appeal to the High Court? Is the Tribunal's Order appealable? Remember you can appeal to the High Court against a CESTAT order only on a question of Law. What Question of Law can you frame against an interim order requiring pre-deposit?
Can you approach the High Court on a writ petition? Is a writ maintainable if there is an alternate remedy? If appeal is possible, will writ be admitted?
There is no unanimous opinion on these questions even among the High Courts.
In recent times, 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.
The AP High Court in dismissed the writ petition holding that the remedy was 'appeal' against the CESTAT order and not writ.
The Supreme Court had in Raj Kumar Shivare's case , held that writ petition is not ordinarily maintainable to challenge an order of the Tribunal. But this was a FEMA case. Is this decision applicable to decisions of the CESTAT?
In a very recent order, the Calcutta High Court held that there is no absolute bar against the invocation of power of judicial review under Article 226 of the Constitution, even if, there is an alternative remedy available to the aggrieved person. It is not a rule of exhaustion of the remedy but a rule of convenience and discretion.
The High Court found that writ jurisdiction is not completely taken away because of the existence of an alternative remedy by way of an appeal under Section 35 F of the Central Excise Act.
So, now what does one do - file an appeal or writ? Well, that depends on which High Court you file your writ/appeal in.
We bring you this order today. Please see Breaking News
1. DDT 2225 - Stay order of the CESTAT - Appeal or Writ?
2. DDT 2248 - Stay order of CESTAT - Appeal or Writ? - AP High Court follows Madras
3. Maintainability of Appeal or Writ against Miscellaneous Order ? Is Revenue dormant or in dark !!!