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TMI Blog2016 (6) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... tter of mandatory pre-deposit of 7.5%/10% as the case may be for filing an appeal before the CESTAT in terms of amendment in Section 35F of the Central Excise Act, 1944 (CE) Act with effect from 6th August 2014. 2. The consequential prayer is that this Court should declare that, where the lis had originated, by means of initiation of proceedings before the lower adjudicating/appellate authorities before 6th August 2014, the appeal filed before the CESTAT against the appellate or adjudication order should be governed by Section 35F of the CE Act as it stood prior to 6th August, 2014. A further consequential relief that is sought is for a direction to the CESTAT to hear and decide the appeal filed by the Petitioner against the Adjudication O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate. As far as the present case is concerned, although the initial adjudication order was passed on 23rd December 2010, that order was set aside by the CESTAT on 13th December, 2011 and the matter remanded to the Commissioner of Customs for a fresh adjudication. In the second round, a fresh adjudication order was passed by the Principal Commissioner on 18th May, 2015. An appeal was then filed by the Petitioner before the CESTAT along with an application for stay/waiver of pre-deposit. The further appeal having been filed after the amendment to Section 35F CE Act would be governed by the said amended provision. 6. In the present case, the adjudication order has confirmed the demand against the Petitioner in the sum of Rs. 2,82,49,444/- and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime and resources of the Tribunal or, as the case may be, of the Commissioner (Appeals). Parliament has stepped in by providing a requirement of a deposit of 7.5% in the case of a First Appellate remedy before the Commissioner (Appeals) or to the Tribunal. The requirement of a deposit of 10% is in the case of an appeal to the Tribunal against an order of the Commissioner (Appeals). This requirement cannot be regarded or held as being arbitrary or as violative of Article 14. Above all, as the Supreme Court held in Shyam Kishore (supra), the High Court under Article 226 of the Constitution is vested with the jurisdiction in an appropriate case to dispense with the requirement of pre-deposit and the power of the Court under Article 226 is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... What has been recorded in the aforementioned Order-in-Original is that Mr Chopra joined hands with one Mr Anoop Chawla and an Australian Company to start a joint venture with M/s Samarth Designs Pvt. Ltd. and new entity came into carried out the same line of business as the Petitioner. While Mr Chopra may have decided to close the Petitioner's operations, in reality, the liability of the Petitioner as a legal entity to pay arrears of statutory duties did not cease. In other words, it was not as if Samarth Designs Pvt. Ltd. took over the liabilities of the Petitioner. It is stated that at no stage was a resolution regarding taking over the existing liabilities of the Petitioner passed by the Directors of Samarth Designs Pvt. Ltd. 9. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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