2016 (6) TMI 437 - HC - Central Excise

Seeking complete waiver of pre-deposit - without requiring mandatory pre-deposit of 7.5% / 10% for filing an appeal before CESTAT - Section 35F of the Central Excise Act, 1944 - Financial hardship to the petitioner - Held that - under Section 35F of the CE Act as it stood prior to 6th August 2014, a discretion was available to the CESTAT to consider the financial hardship and accordingly determine the pre-deposit amount. That discretion has been consciously sought to be curtailed and thus an amendment was made to Section 35 F CE Act requiring making of a pre-deposit of 7.5% in all cases subject to an upper cap of ₹ 10 crores. A direction, therefore, to the CESTAT that it should waive the pre-deposit would be contrary to the express legislative intent expressed in the amended Section 35F with effect from 6th August, 2014. While, the jurisdiction of the High Court under Article 226 of the Constitution to grant relief notwithstanding the amended Section 35 F cannot possibly be taken away, the Court is of the view that the said power should be used in rare and deserving cases where a clear justification is made out for such interference. Having heard the submissions of Mr Datta and having perused the adjudication order, the Court is not persuaded to exercise its powers under Article 226 to direct that there should be a complete waiver of the pre-deposit as far as the Petitioner s appeal before the CESTAT is concerned. - Waiver not granted

Summary

Issues:
Challenge to Circulars on mandatory pre-deposit for appeal before CESTAT; Interpretation of Section 35F of Central Excise Act; Financial hardship plea in relation to pre-deposit requirement.

Analysis:
The writ petition challenges Circulars on mandatory pre-deposit for CESTAT appeals post-amendment to Section 35F of Central Excise Act. Petitioner seeks declaration that appeals initiated pre-amendment should follow old provision. Court declines to reconsider validity of Section 35F based on previous decisions. Amendment mandates pre-deposit of 7.5%/10% for pending appeals. Petitioner's appeal, post-amendment, demands pre-deposit. Financial hardship plea raised, citing Allahabad High Court decision. Court adjourns to assess Petitioner's ceased status.

The Petitioner's ceased status is scrutinized. Sole proprietor explains Petitioner's non-existence since 2007 due to Indian Oil Corporation's actions. However, joint venture details indicate ongoing liabilities. Court rules that ceasing operations doesn't dissolve legal entity's duty. Proprietary concerns can't unilaterally declare non-existence. Amendment curtails CESTAT's discretion on pre-deposit, emphasizing legislative intent.

Despite Article 226 powers, Court deems complete waiver unjustified. Rare cases warranting interference noted. Financial hardship plea insufficient for pre-deposit waiver. Writ petition dismissed without costs, upholding amended Section 35F's applicability.