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TMI Blog2016 (7) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... oner has not exhausted the appeal remedy, which has been provided under the provisions of the Finance Act. 5. In response to such a query, the learned counsel for the petitioner submits that the petitioner does not seek to canvass the merits of the case, but would pray for a direction to the petitioner to approach the Tribunal with a further direction to the Tribunal to take up the petitioner's stay application. In other words, the submission of the learned counsel for the petitioner is that the petitioner should be permitted to go before the Tribunal with a direction to the Tribunal to take up the stay application, thereby bypassing the pre-deposit condition, which has been made mandatory with effect from 6.8.2014. 6. The learned counsel for the petitioner strongly placed reliance on the decision of the Hon'ble Division Bench of this Court in the case of Arafaath Travels Pvt. Ltd. Vs. CESTAT [reported in 2016-TIOL-133-HC-MAD-ST] and by referring to paragraph 4.8 therein, it is submitted that unless the lis in question has commenced prior to the introduction of the Finance Act, 1994 (with effect from August 2014), the petitioner's right to appeal, as per the erstwhile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the petitioner do not merit acceptance for the reason that in the case of Arafaath Travels Pvt. Ltd. (cited supra), the Hon'ble Division Bench of this Court took note of the amendment, which was made applicable to appeals filed after 6.8.2014 and that the appeals and the stay applications filed prior to the said date were to be governed by the erstwhile provisions. However, the Hon'ble Division Bench did not frame a separate question as regards the validity of the provisions, which were introduced with effect from 6.8.2014. 12. While testing the correctness of a pre-deposit order passed by the Tribunal, these observations have been made. However, the fact remains that in the decision in the case of M/s.Dream Castle and another (cited supra), the prayer sought for is to declare that Section 35F of the Central Excise Act read with Section 83 of the Finance Act would apply only to show cause proceedings initiated on or after 6.8.2014. The Hon'ble Division Bench, after elaborately considering all the contentions raised, including the decision of the Kerala High Court in the case of Muthoot Finance Ltd. Vs. Union of India [2015-TIOL-632-HC-Kerala], dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sugar Refining Co. Ltd., the decision of the Supreme Court in Hoosein Kasam Dada and the decisions of the Supreme Court in Jose Da Costa Vs. Bascora Sadasiva Sinai Narconim [(1976) 2 SCC 917] and Ramesh Singh Vs. Cinta Devi [AIR 1996 SC 1560], the Allahabad High Court held in paragraphs 19 and 20 as follows: '19. Parliament while substituting the provisions of Section 35F of the Central Excise Act, 1944 by Finance Act (No.2) of 2014, has laid down that the Tribunal or the Commissioner (Appeals) "shall not entertain any appeal" unless the appellant has deposited the duty or, as the case may be, a penalty to the stipulated extent. These words in Section 35F of the Act would indicate that on and after the enforcement of the provision of Section 35F of the Act, as amended, an appellant has to deposit the duty and penalty as stipulated and unless the appellant were to do so, the Tribunal shall not entertain any appeal. This provision would, therefore, indicate that it would apply to all appeals which would be filed on and from the date of the enforcement of Section 35 of the Act. 20. The intendment of Section 35F of the Act is further clarified by the second proviso which stip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been answered in Shyam Kishore Vs. Municipal Corporation of Delhi [(1993) 1 SCC 22], by a three Member Bench of the Supreme Court, though not directly, but indirectly. In paragraph 38 of the decision, the Supreme Court stated as follows: "The decisions of the Bombay and Calcutta High Courts earlier referred to (Elora - AIR 1980 Bom. 162 and Chatter Singh - AIR 1984 Cal. 283) have upheld the validity of a provision banning the entertainment of an appeal altogether where the taxes are not paid. However, the Supreme Court decisions in Anant Mills [1975 (2) SCC 175], Vijay Prakash Mehta [1988 (4) SCC 402] and A.S.Bava [AIR 1968 SC 13] had occasion to consider only the vires of a milder provision which permitted the Appellate Authority to waive or relax the condition of deposit. As explained in Seth Nand Lal Vs. State of Haryana, these decisions settle the principle "that the right of appeal is a creature of a statute and there is no reason why the legislature while granting the right cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory" 56. Let us now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 11. While the jurisdiction of the High Court under Article 226 of The Constitution to grant relief notwithstanding the amended Section 35F 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-deposit as far as the petitioner's appeal before the CESTAT is concerned." 16. In the light of the above, this Court is of the view that the relief sought for to direct the petitioner to approach the Tribunal and file a stay application with a further direction to the Tribunal to hear the same thereby waiving the condition of pre-deposit of 7.5%, cannot be acceded to. 17. Accordingly, the writ petition is dismissed as not maintainable. However, it is open to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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