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TMI Blog2016 (9) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... e rejected - if the petitioners file the respective appeals within thirty days with the requisite pre-deposit, the Appellate Authority may examine the matter on merits while ignoring the question of limitation. Pre-deposit – section 35 F of the Central Excise Act, 1944 - the submissions of the petitioners are unacceptable that making of pre-deposit is of such a hardship that may result in depriving them access to the appellate forum – requirement of payment of pre-deposit upheld. - WP (C) No. 157 of 2015, WP (C) No. 234 of 2015 - - - Dated:- 29-7-2016 - Dinesh Maheshwari, CJ And Ved Prakash Vaish, JJ. Mr. N. Dasgupta, for the petitioners Mr. N Mozika, for the respondents ORDER AFR BY THE COURT: (Per Hon ble the Chief Justice) (Oral) These two writ petitions involving almost similar questions have been considered together and are taken up for disposal by this common order. By way of these writ petitions, the petitioners, engaged in the business of undertaking works contracts, seek to question the orders passed by the competent authorities under the Central Excise Act, 1944 [ the Act of 1944 ] pursuant to the respective show cause notices, holding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amendment, the Appellate authority in deserving cases authorised to grant waiver of pre-deposit, considering the balance of convenience and hardship. This justice delivery system has been dispensed with and in case of a perverse and erroneous order like this, it is required to comply with the mandatory pre-deposit. The humble Petitioner is having serious difficulties to arrange such huge fund for the mistake committed by the Respondent Authority to avail the alternative remedy. 15.2 Impugned Order is violative to the Section 65(105)(zzq), Section 65 (105)(zzzza)] of the Finance Act, 1994 and the Service Tax Notification No 24/09-Service Tax, dated 27th July, 2009 and other Circulars and Instructions issued by the Central Board of Excise and Customs (CBEC). Thus, impugned order passed by the Respondent Authority is without jurisdiction. 15.3 Further, it is felt that approaching the Commissioner of Appeals, Central Excise Service tax would be an exercise in futility. View taken by the Appellate authority in the Order-in Appeal No 45/SH/CE(A)/GHY/2015 dated 28.04.2015, in the case of Shri Niranjan Saha is identical of the view taken by the Respondent in the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Uttar Pradesh: AIR 1962 SC 1621; Union of India vs. Guwahati Carbon Ltd.,: (2012) 11 SCC 651; and Commissioner of Income Tax and others vs. Chhabil Dass Agarwal: (2014) 1 SCC 603. Learned counsel for the petitioners has countered the objection of the respondents while strenuously contending that the orders impugned are assailable in the writ jurisdiction of this Court for the authorities concerned having acted wholly without jurisdiction in not appreciating the provisions of law including those contained in Section 65(105)(zzq) and Section 65(105)(zzzza) of the Finance Act of 1994 and service tax notification dated 27.07.2009; and in failing to consider that the construction/renovation of road for the particular Public Sector Undertaking was directly eligible for exemption and was not subject to service tax. Learned counsel for the petitioners has also contended that the remedy of appeal under Section 35 of the Act of 1944 cannot be said to be an efficacious remedy for several reasons including the fundamental one that with the amended Section 35-F of the Act of 1944, it is mandatorily required of an appellant to make pre-deposit @ 7.5% for the first time appeal and @ 10% for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court in Mangal Textile Mills (I) Pvt. Ltd. (supra), while referring to the Constitution Bench decision in A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj Wadhwani Anr. (supra), in the following:- 8. We find substance in the contention of learned counsel for the appellants. It is true that power of the High Court to issue prerogative writs under Article 226 of the Constitution is plenary in nature and cannot be curtailed by other provision of the Constitution or a Statue by the High Courts have imposed upon themselves certain restrictions on the exercise of such power. One of such restrictions is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction under Article 226 of the Constitution. But again, this rule of exclusion of writ jurisdiction on account of availability of an alternative remedy does not operate as an absolute bar to entertaining a writ petition but is a rule of discretion to be exercised depending on the facts of each case. On this aspect, the following observations by the Constitution Bench of this Court in A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj Wad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... again ruled on the same principles of law that alternative remedy is not a bar on the maintainability of the writ petition if the authorities concerned have acted wholly without jurisdiction or where an order is questioned on the ground that it suffers from lack of jurisdiction. The matter in J.M. Baxi Co. (supra) had been of a peculiar nature where the demand to the tune of ₹ 46 lakhs was raised 16 years after it was due; and was challenged on the ground that it was barred by time and hence, the Hon ble Supreme Court observed that these were the special facts of the case and the High Court have ought to exercise the writ jurisdiction. The learned counsel for the petitioners has painstakingly attempted to contend before us that the orders impugned are wholly without jurisdiction inasmuch as the authorities concerned have totally failed to examine the provisions of law applicable and to correctly apply the notifications governing the field and hence, the present cases are covered under contingency No. (iii) envisaged in Harbanslal Sahnia (supra). We are afraid, the submissions of the learned counsel for the petitioners, suggestive of an error of law on the part of the aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, the suggestion that the orders impugned suffer from want of jurisdiction, being wholly baseless, is required to be rejected. Coming to the question of pre-deposit, it is an admitted position that with the amended Section 35-F of the Act of 1944, the mandatory pre-deposit is required at 7.5 percent for the first time appeal and 10 percent for the second appeal over the component of demand as specified therein. The petitioners have merely stated that such provisions cause severe hardship to them. It is not the case of the petitioners that they are not at all possessed of sufficient means to make such pre-deposit. Of course, the petitioners would be required to part with money for making the deposit; and the petitioners may not find such parting to be encouraging or comfortable to them but such a discomfort, by itself, cannot be taken to be a matter of such an extreme hardship that the remedy of appeal be considered beyond the reach of the petitioners. Noteworthy it is that the petitioners have executed the respective work contracts to the tune of about ₹ 5.63 crores [in WP(C) No.157 of 2015] and about ₹ 8.08 crores [in WP(C) No.234 of 2015]. In an overall compr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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