2024 (4) TMI 904 - HC - Central Excise

Maintainability of petition - alternative appeal - waiver of pre-deposit - seeking the petitioner be relegated to appeal jurisdiction under Section 86 of the Finance Act, 1994 and direct the Tribunal to grant waiver of pre-deposit - HELD THAT - An alternative efficacious remedy is available to the petitioner wherein, the petitioner has already filed his appeal. The very fact that the petitioner has already filed the appeal, precludes this Court from now examining this matter in writ jurisdiction. The petitioner cannot be allowed to be sitting on the fence. The filing of this petition is nothing but an after thought as the petitioner wants to escape the liability of payment of pre-deposit, which is mandated by law. In a catena of judgements, the Supreme Court and various High Courts have categorically held that the condition of the pre-deposit cannot be waved/modified by the High Court in its extraordinary discretionary writ jurisdiction. Any discretion to be exercised by the writ Court is judicial in nature and is required to be exercised only in accordance with law. If the High Courts were to interfere/tinker with the amount of pre-deposit to be deposited, the entire provision of pre-deposit would become otiose. A Division Bench of this Court in Shri Subhash Jain v. Commissioner of Central Goods And Service Tax 2023 (4) TMI 52 - ALLAHABAD HIGH COURT has categorically held that in case of Central Excise Act the Courts does not have the power to waive the pre- deposit. The Division Bench of Bombay High Court in Kantilal Bhaguji Mohite v. Commr of C. Excise Service Tax, Pune-III 2019 (2) TMI 1029 - BOMBAY HIGH COURT has similarly laid down the ratio with regard to waiver of pre-deposit. The judgements in Shri Subhash Jain and Kantilal Bhaguji Mohite are binding - this petition has no merit - petition dismissed.

Summary

Issues Involved:
The judgment addresses the availability of alternative efficacious remedy for a petitioner under Article 226 of the Constitution of India and the discretion of the High Court to waive pre-deposit in extraordinary discretionary writ jurisdiction.

Alternative Efficacious Remedy:
The petitioner filed a petition under Article 226 of the Constitution of India challenging an order passed by the Commissioner, Central Goods and Service Tax. The court noted that the petitioner had already filed an appeal, indicating the availability of an alternative efficacious remedy. The court held that since the petitioner had already pursued this remedy, the matter could not be examined afresh in writ jurisdiction. The court emphasized that the petitioner cannot avoid the liability of pre-deposit by resorting to a writ petition.

Discretion of High Court to Waive Pre-Deposit:
The court referred to various judgments by the Supreme Court and different High Courts, highlighting that the condition of pre-deposit cannot be waived or modified by the High Court in its extraordinary discretionary writ jurisdiction. The court emphasized that any discretion exercised by the writ Court must be in accordance with the law. It was noted that interference with the pre-deposit amount by the High Courts would render the provision of pre-deposit meaningless. The court cited a Division Bench judgment of the Allahabad High Court and a judgment of the Bombay High Court to support the position that the courts do not have the power to waive pre-deposit under the Central Excise Act.

Precedents and Legal Analysis:
The court considered the petitioner's reliance on judgments of the Supreme Court and a coordinate Bench judgment of the High Court to argue for the jurisdiction of the writ Court to reduce or waive pre-deposit in cases of undue hardship. However, the court held that it was bound by the judgments that post-amendments, High Courts cannot exercise discretion in waiving pre-deposit. The court noted that the law regarding pre-deposit has undergone a significant change post-amendments, and High Courts are now precluded from waiving the pre-deposit requirement.

Conclusion:
In light of the above findings, the court dismissed the writ petition, directing the petitioner to pursue the appeal filed before the CESTAT, Allahabad Bench and to pay the pre-deposit as required by law. The court emphasized that the petitioner must comply with the legal obligation of pre-deposit and cannot evade it through the writ jurisdiction.