2017 (8) TMI 595 - HC - Central Excise

Maintainability of appeal - alternative remedy - Section 35B (1)(b) of the Excise Act - Held that - the only ground for invoking the writ jurisdiction or seeking waiver of pre-deposit is that the Petitioners are not in a financial condition to deposit the amount. In our considered view this cannot be considered as an exceptional circumstance to invoke the writ jurisdiction or to waive the pre-deposit particularly when the amount required to be deposited is 7.5 per cent of the duty demanded - also in view of the availability of the alternative efficacious remedy we are declined to entertain the writ jurisdiction - petition dismissed - decided against petitioner.

Summary

Issues:
Challenge to order by Commissioner of Central Excise and Customs; Maintainability of writ petition due to alternative remedy under Section 35B of the Central Excise Act,1944; Waiver of monetary pre-deposit for appeal under Section 35F.

Analysis:
The petitioners challenged an order by the Commissioner of Central Excise and Customs, seeking to avoid a monetary pre-deposit for their appeal under Section 35 of the Central Excise Act,1944. The Respondent argued that the petition was not maintainable as the petitioners had an alternative remedy under Section 35B of the Act. The petitioners contended that the order was arbitrary and violated natural justice, making the deposit condition onerous due to financial difficulties. They cited judgments to support their position. The Respondent countered that the petitioners had already filed an appeal and had not raised substantial grounds of arbitrariness or violation of principles of natural justice.

The High Court considered the arguments and cited the case of M/s. Baburam Prakash Chandra Maheshwari to explain exceptions to the exhaustion of statutory remedies. However, as the petitioners did not challenge the vires of any law and failed to provide specific grounds for arbitrariness or violation of natural justice, these exceptions did not apply. The Court highlighted that Section 35F of the Excise Act mandates a deposit before filing an appeal, with no provision for waiver by the appellate authority. The Court found the deposit amount of 7.5% reasonable and rejected the argument of financial difficulty as an exceptional circumstance to invoke the writ jurisdiction or waive the pre-deposit.

In conclusion, the Court dismissed the writ petition, emphasizing the availability of an alternative efficacious remedy under Section 35B and the lack of exceptional circumstances to justify the waiver of the pre-deposit requirement. The petitioners were not granted any relief, and no costs were imposed.