2021 (5) TMI 597 - HC - Central Excise

Maintainability of petition - Compliance with the requirement of pre-deposit - Section 35F of the Central Excise Act, 1944 - To Consider the amount deposited during investigation as pre-deposit - HELD THAT - Irrespective of the fact whether the issues is covered on merits or not and covered by an order of the Tribunal for the previous period, the petitioner is required to pre-deposit 7.5% of the disputed tax and/or penalty or both together at the stage of the first appeal before the second respondent Commissioner of Central Excise (Appeals) and another sum of 2.5% totalling to 10% at the stage of Appeal before the first respondent Tribunal. This statutory minimum cannot be waived. The idea of rationalizing this amount to a statutory minimum is to spur final hearing of the appeal by the Tribunals and Commissioner (Appeals). Further, the Registry of the first respondent is really not concerned with the merits of the case and therefore, cannot waive the amount - it is not possible under the scheme of the amendment to the Act for the petitioner to expect the Registry of the first respondent Tribunal to adjudicate the same. Therefore, the challenge to the impugned communication on the score has to fail. Therefore, petitioner may obtain a certificate from the jurisdictional officer or Supt of Central Excise to the effect that the amount of ₹ 2.32 Crores paid by the petitioner has not been adjusted against any of the duty liability or refunded back to the petitioner - If such certificate is obtained, such certificate shall be produced before the Registry of the first respondent Tribunal - Petition disposed off.

Summary

Issues:
- Writ petition for mandamus to direct the 1st respondent to entertain the Appeal without pre-deposit
- Registry's demand for pre-deposit of 10% disputed tax liability
- Petitioner's argument on merits covered by previous Tribunal order
- Refusal to follow Tribunal order due to pending SLP before Supreme Court
- Petitioner's claim of excess amount deposited
- Precedents of other High Courts granting waiver of pre-deposit
- Respondent's submission against waiver of pre-deposit
- Court's consideration of arguments and cited decisions
- Requirement of statutory minimum pre-deposit under Section 35F
- Purpose of rationalizing pre-deposit to expedite appeal process
- Inability to waive pre-deposit under the Act's scheme
- Jurisdiction of the Court under Article 226
- Amount debited by petitioner during investigation
- Total disputed tax amount confirmed by authorities
- Direction for obtaining certificate from jurisdictional officer
- Timeline for obtaining and submitting certificate
- Treatment of obtained certificate towards mandatory deposit
- Disposal of the Writ Petition with observations and no cost

Analysis:
- The writ petition sought a mandamus to direct the 1st respondent to entertain the Appeal without pre-deposit, challenging the Registry's demand for a 10% pre-deposit of the disputed tax liability. The petitioner argued that the issue on merits was covered by a previous Tribunal order, which the second respondent refused to follow due to a pending SLP before the Supreme Court.
- The petitioner also claimed that an excess amount was deposited, citing precedents of other High Courts granting waivers of pre-deposit in similar contexts. However, the respondent contended that the petitioner could not seek a waiver contrary to the express language of Section 35F of the Central Excise Act, 1944.
- The Court considered the arguments and cited decisions, emphasizing the requirement of a statutory minimum pre-deposit under Section 35F to expedite the appeal process. It clarified that the statutory minimum could not be waived to ensure the timely resolution of appeals by Tribunals and Commissioners.
- Despite the petitioner's arguments and the cited decisions, the Court held that the Registry could not waive the pre-deposit amount as it was not concerned with the case's merits. The Court highlighted that the jurisdiction of the Court under Article 226 aimed to uphold the law, not circumvent it.
- The Court acknowledged the amount debited by the petitioner during the investigation and detailed the total disputed tax amount confirmed by the authorities. It directed the petitioner to obtain a certificate from the jurisdictional officer within two months, confirming the non-adjustment or refund of the debited amount.
- Upon obtaining the certificate, the petitioner was instructed to submit it to the Registry of the first respondent Tribunal for consideration towards the mandatory deposit under Section 35F. The Court disposed of the Writ Petition with the outlined observations, without imposing any costs, and closed the connected Miscellaneous Petition.