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2018 (3) TMI 1427 - HC - Central ExciseCompliance with pre-deposit - Section 35F of the Central Excise Act, 1944 - Held that - In the matter of Suvidha Signs Studios Pvt. Ltd. v. Union of India 2016 (5) TMI 85 - DELHI HIGH COURT the petitioner therein failed to comply with the statutory mandatory requirement of depositing the 7.5% of the demand of duty and penalty and therefore, the appeal of the petitioner therein was dismissed. Similar is the view taken in the matter of Pioneer Corporation v. Union of India 2016 (6) TMI 437 - DELHI HIGH COURT , where it was held that the jurisdiction of the High Court under Article 226 of the Constitution to grant relief notwithstanding the amended Section 35F 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. Petition dismissed.
Issues:
1. Quashment of final order by CESTAT for non-compliance with pre-deposit requirement under Section 35F of Central Excise Act, 1944. 2. Interpretation of amended provisions of Section 35F post-2014. 3. Applicability of financial hardship as a ground for waiving pre-deposit. 4. Validity of writ petition challenging show cause notices and orders. Analysis: 1. The petitioner sought to quash the final order of Customs, Excise & Service Tax Appellate Tribunal (CESTAT) for dismissing the appeal due to non-compliance with the mandatory pre-deposit condition under Section 35F of the Central Excise Act, 1944. The petitioner argued financial hardship as a reason for non-payment, citing judgments of other High Courts. However, the respondents contended that post-amendment in 2014, pre-deposit is mandatory, and any waiver would contravene Section 35F's provisions. The Court noted that the amended provision required a fixed percentage deposit of 7.5% in all cases, precluding discretionary waivers based on financial hardship. 2. The Court considered the interpretation of the amended provisions of Section 35F post-2014, emphasizing the removal of discretion to waive pre-deposit. The respondents argued that the petitioner's case did not involve retrospective application of law but pertained to the benefit of a specific notification. The Court referenced judgments upholding the validity of the amended provision, highlighting the Jharkhand High Court's decision, affirmed by the Apex Court, which dismissed challenges to the amended Section 35F. The Court reiterated that the petitioner did not challenge the validity of Section 35F's amendment. 3. Financial hardship as a ground for waiving pre-deposit was a crucial aspect of the case. The petitioner cited financial difficulties as a reason for seeking a waiver, relying on prior judgments. However, the Court noted that the amended Section 35F mandated a fixed percentage pre-deposit, eliminating the discretion to waive based on financial reasons. Citing precedents where financial difficulties did not warrant waivers, the Court dismissed the petitioner's plea for quashing the order based on financial hardship. 4. The validity of the writ petition challenging show cause notices and orders was also addressed. The Court referenced previous writ petitions filed by the petitioner, highlighting instances where the petitioner sought relief against show cause notices and orders. The Court observed that alternative remedies, such as appeals, were available under the law, and declined to entertain a second writ petition when remedies had been granted in earlier proceedings. The Court emphasized that the availability of alternative remedies precluded the need for multiple writ petitions challenging the same issues. In conclusion, the Court dismissed the writ petition challenging the CESTAT's order, emphasizing the mandatory nature of pre-deposit under Section 35F post-amendment in 2014. The Court's decision was based on the specific provisions of the Central Excise Act and the precedents that upheld the validity of the amended Section 35F, underscoring the importance of complying with statutory requirements and the limited scope for waivers based on financial hardship.
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