Advocate Anandaday Misshra

Recently, Honourable  High Court of Allahabad in Central Excise Appeal  No. – 444 of 2010 of Commissioner, Central Excise, Meerut-I, Versus  M/S Suraj & Company, reported in 2014(36) S.T.R.1252(All.) held that an appeal to High Court is not maintainable against an order of Tribunal which is itself Passed With Consent of both the parties .

Order of Tribunal

The Tribunal has passed the following order on 21st May, 2010  :-

Both sides agree that this matter is squarely covered by the judgement of Hon’ble High Court of Madhya Pradesh in the case of Som Distilleries Pvt. Ltd. & Ors. Vs. UOI and Ors. report in 2009 (15) STR 3 (M.P.). The ratio of the said judgement was followed by the Tribunal in the case of Great Galleon Ltd. Vs. Commissioner of Central Excise, Indore reported in 2009 (16) STR 169 (Tri -Delhi.). Finding no dispute, we allow the appeal and also dispose of the stay application”.

Respondent Pleaded

The respondent has raised a preliminary objection regarding maintainability of the appeal. He submits that the order passed by the Tribunal being a consent order which is clear from the order itself, no appeal lie against the consent order. He has relied on sub-Section (9) of Section 35G of Central Excise Act as well as Section 96(3) of Civil Procedure Code. Sub-Section (9) of Section 35G is as follows : –

“Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) relating to appeals of the High court shall, as far as may be, apply in the case of appeals under this section.”

Section 96, sub clause (3) of the Civil Procedure Code, 1908 reads :

Appeal from the original decree-
(1) ………
(2) ……..
(3) No appeal shall lie from a decree passed by the Court with the consent of parties“.

High Court Concluded
By virtue of provision of Section 35G sub Section (9) the provision of Civil Procedure Code, in so far as the appeals to the High Court are concerned are applicable.

Sub-section (3) of Section 96 of Civil Procedure Code provides that No appeal shall lie from a decree passed by the Court with the consent of parties. The decree passed by the tribunal being a consent decree, this appeal is clearly not maintainable and is liable to be dismissed on this ground alone.

The preliminary objection is sustained. The appeal is dismissed.

Impact of the Order

If the order of Tribunal is worded to the following effect that

  • both sides agree that there is no dispute
  • both sides agree that the matter is squarely covered by the judgement

then in such type of cases , none of the parties to the dispute can claim to be aggrieved against such an order in as much as such orders are considered to be a decreee passed by the Tribunal with the consent of parties .

Accordingly, in such cases , no appeal to High Court can be filed under Section 35G of CEA,1944 as applicable to service tax vide Section 83 of Finance Act,1944.

(Advocate Anand Mishra, AMLEGALS– The author is a leading indirect tax advocate handling cases in CESTAT & High Courts of India. He can be contacted on anand@amlegals.com and for more please refer www.amlegals.com)

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I am a litigation & arbitration advocate. I am founder of a leading full service law firm AMLEGALS. I handle litigation in indirect taxes, Insolvency & Bankruptcy Code, IPR, Arbitration, Contracts etc in High Courts, Tribunals-NCLT,CESTAT,NCLAT etc, Arbitral Tribunals and various Court of View Full Profile

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