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TMI Blog2019 (8) TMI 676X X X X Extracts X X X X X X X X Extracts X X X X ..... ng waiver from predeposit of 7.5% of the duty demanded for entertaining the appeal, which the appellant filed against Order-in-Original dated 11.01.2017 issued on 12.01.2017, has been dismissed. Initially, the appellant approached this Court by way of filing D.B. Civil Writ Petition No. 8612/2018 inter alia with the prayer that in view of its poor financial condition, appellant was not in a position to pay the huge amount of pre-deposit, it should be granted waiver from the requirement of pre-deposit. This Court vide order dated 27.04.2018 disposed of the writ petition requiring the appellant to produce its financial condition and turn over by way of application before the Tribunal, which was directed to pass appropriate order looking to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving regard to list of immovable properties produced before the Court. It is argued that the appellant has already, in terms of order dated 06.03.2019 passed by this Court, deposited 50% of the predeposit amount and therefore, if waiver of entire amount of predeposit is not granted to it, the appellant should be granted waiver to the extent of remaining 50%. Learned counsel submitted that since the impugned order passed by the Tribunal was appellable, therefore, the appellant had to, in any case, file present appeal. Since the appellant had earlier approached this Court by filing writ petition and this Court directed the Tribunal to consider the financial hardship of the appellant, merely because the appellant has now not filed the writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. It is argued that Special Leave to Appeal (C) No. 25664/2017 filed against the aforesaid judgment was dismissed by the Supreme Court vide judgment dated 09.10.2017. Reliance in support of his arguments is also placed on judgment of Delhi High Court in Pioneer Corporation Vs. Union of India, 2016 (340) ELT63 (Del.); judgment of Bombay High Court in Nimbus Communications Limited Vs. Commissioner of Service Tax, Service Tax-VI, Mumbai & Others, 2016 (44) S.T.R. 578 (Bom.); judgment of Allahabad High Court in Cyquator Media Services P. Ltd. Vs. Union of India & Others, 2018 (10) G.S.T.L. 297. We have given our anxious consideration to rival submissions and carefully perused the material on record. Section 35F of the Act, as it earlier st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (1) of section 35B, unless the appellant has deposited ten per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against: Provided that the amount required to be deposited under this section shall not exceed rupees ten crores: Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No.2) Act, 2014. Explanation.─For the purposes of this section "duty demanded" shall include,─ (i) amount determined under section 11D; (ii) amount of erroneous Cenvat credit taken; ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upper cap of Rs. 10 crores. A direction, therefore, to the CESTAT that is 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. 10. 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5F(i) of the Act. No doubt, the High Court has a wider jurisdiction under Article 226 of the Constitution but the said jurisdiction has to be exercised only in exceptional cases. Mere fact that the duty demanded by the department is considerably high and the appellant is not in a position to pay the same, cannot be a ground to waive the mandatory requirement of pre-deposit. Delhi High Court in Manoj Kumar Jha (supra) did not notice its earlier two judgments of the same Court in Pioneer Corporation (supra) and Suvidha Signs Studios Pvt. Ltd. (supra), which were delivered by the Benches of equal strength. Earlier judgments would therefore have greater precedential value. Legislative mandate contained in Section 35F of the Act is intended to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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