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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 ..... 377; 10 crores. A direction, therefore, to the CESTAT that it should waive the pre-deposit would be contrary to the express legislative intent expressed in the amended Section 35F with effect from 6th August, 2014. While, the jurisdiction of the High Court under Article 226 of the Constitution to grant relief notwithstanding the amended Section 35 F 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. Having heard the submissions of Mr Datta and having perused the adjudication order, the Court is not persuaded to exercise its powers under Article 226 to direct that there should be a complete waiver of the pre-d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with the application for stay/ waiver of pre-deposit without requiring any mandatory pre-deposit to be made by the Petitioner. 3. Mr Sachin Datta, learned Senior counsel appearing for the Petitioner, submitted that notwithstanding the decision of the Allahabad High Court in Ganesh Yadav v. Union of India 2015 (320) E.L.T. 711 (All.) which has been followed by this Court in the decision dated 21st October, 2015 in Customs Appeal No.19/2015 (Anjani Technoplast Ltd. v. The Commissioner of Customs), the order dated 25th April, 2016 in W.P.(C) No.3380/2016 (Suvidha Signs Studios Pvt. Ltd. v. Union of India) and order dated 10th May, 2016 in W.P.(C) No.927/2015 (Rajdhani Flora Infrastructure Developers Pvt. Ltd. v. Union of India), th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner is that in view of the financial hardship of the Petitioner, this Court should in exercise of its powers under Article 226 of the Constitution waive the requirement of pre-deposit. Mr Sachin Datta drew the attention of the Court to the following lines in para 9 of the decision of the Allahabad High Court in Ganesh Yadav in support of the above plea: 9. Parliament while amending the provisions of Section 35F of the Act has required the payment of 7.5 percent of the duty in case the duty and penalty are in dispute or the penalty where such penalty is in dispute. In the case of an appeal to the Tribunal against an order passed by the Commissioner (Appeals), the requirement of deposit is 10% of the duty or as the case may be, the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Laxmi Devi (supra) in which the Supreme Court observed that recourse to the writ jurisdiction would not be ousted in an appropriate case. Whether the writ jurisdiction under Article 226 should be exercised, having due regard to the discipline which has been laid down under Section 35F of the Act, is a separate matter altogether but it is important to note that the power under Section 226 has not been, as it cannot be, abridged. 7. This Court, at the request of Mr Datta, adjourned the case by its order dated 13th May, 2016 to enable the Petitioner to place on record the documents in support of the plea that the Petitioner proprietory concern had ceased for exist as such. At this stage, it must be recalled that the Petitioner is a Prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the Petitioner ceasing its business operations, it ceased to exist as a legal entity for the purposes of its liability under the Central Excise law. In other words, the Petitioner shall continue to be liable to pay Central Excise Duty as a legal entity notwithstanding that is may have ceased to carry on business from a particular date. Unlike a company or partnership firm both of which can be dissolved unless there is an express provision in the law permitting taking over of the liability of the Propriety concern the proprietary concern cannot unilaterally declare itself as non-existent. 10. Under Section 35 F of the CE Act as it stood prior to 6th August 2014, a discretion was available to the CESTAT to consider the financial hardsh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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