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HC respite for excise & customs
August, 06th 2009

A Calcutta High Court judgment today held that Customs, Excise, Service Tax Appellate Tribunal (CESTAT) cannot dismiss an appeal when a writ application thereto is pending before a high court.

The order gave much awaited relief to many appellants  whose applications and pleas were pending before the CESTAT and had moved a writ application in the different high courts challenging the tribunal's orders.

While allowing a batch of writ petitions, Mr Justice Soumitra Pal held that CESTAT was not justified in dismissing the appeals for non-compliance of the order directing pre-deposit in view of the insertion of section 35 C (2A) of Central Excise Act and a similar section in Customs Act.

This section postulates that a tribunal shall endeavour to hear and decide every appeal within three years provided there is a stay order which shall be disposed of within six months of the date of the order. If not, the stay order shall be vacated.

This section has to be interpreted in a manner to bring it harmony with other provisions, particularly Section 35 F of the Excise Act, it was held. This section lays down the pre-deposit of an amount by an appellant. The proviso to this section is that he can make application seeking waiver of the pre-deposited sum.

Intention must not be inferred solely from section 35 F if it militates against provisions in 35 C (2A), it was further held.

The provisions in Chapter VI A of the Excise Act has to be construed as a whole, the judgment stated. Intention of the Legislature has to be considered and the statute has to be given a schematic interpretation.

Interpreting CESTAT (Procedure Rules) 1982, the order given by the tribunal dismissing the appeals of non-compliance of its orders directing pre-deposit on respective dates of compliance were also illegal, the court held.

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