2016 (5) TMI 85 - HC - Central Excise

Waiver of pre-deposit - Constitutional Validity of Section 35F of the CE Act - Mandatory provision to deposit 7.5% of the demand of duty and penalty for entertainment of appeal - No pre-deposit had been made till that date - Held that - this Court is not inclined to entertain a challenge to the constitutional validity of Section 35F of the CE Act. As the petitioner having failed to comply with the statutory mandatory requirement, the CESTAT was right in dismissing the Petitioner s appeal by its order. This Court is unable to accede the request of the petitioner that it is great financial difficulty and only needs some more time to pay the pre-deposit amount. Also it is not possible for the Court, in exercise of its jurisdiction under Article 226 of the Constitution, to modify the mandatory conditions set out in Section 35F of the CE Act on any ground whatsoever. - Decided against the petitioner

Summary

Issues:
Challenge to order of Commissioner of Central Excise, Delhi; Validity of Section 35F of the Central Excise Act, 1944 regarding mandatory pre-deposit for appeal; Dismissal of appeal by Custom Excise & Service Tax Appellate Tribunal (CESTAT) due to non-compliance with pre-deposit requirement.

Analysis:

1. The petitioner filed a petition challenging the order dated 30th March, 2015 passed by the Commissioner of Central Excise, Delhi. However, the court noted that the order was appealable, and the petitioner had indeed filed an appeal before CESTAT, which was subsequently dismissed on 27th November 2015. The petitioner also challenged the dismissal of the appeal in this petition, which was found to be misconceived as the appeal was appealable in the first place.

2. Section 35F of the Central Excise Act, 1944 mandates a pre-deposit of 7.5% of the demand of duty and penalty for an appeal to be entertained. The CESTAT dismissed the petitioner's appeal on 27th November 2015 due to the non-compliance with this pre-deposit requirement. The court upheld the validity of this provision, citing a previous decision regarding a similar provision in the Customs Act, 1962. The court declined to entertain a challenge to the constitutional validity of Section 35F of the CE Act.

3. The court found that since the petitioner failed to comply with the mandatory requirement of depositing the 7.5% of the demand of duty and penalty, the dismissal of the appeal by CESTAT was justified. The petitioner's argument of financial difficulty and request for more time to pay the pre-deposit amount was rejected by the court, stating that it could not modify the mandatory conditions set out in Section 35F of the CE Act under Article 226 of the Constitution.

4. Consequently, the court dismissed the writ petition and pending application, upholding the decision of CESTAT to dismiss the appeal due to non-compliance with the pre-deposit requirement.