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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 ..... or the Commissioner (Appeals), as the case may be, appeal shall not be entertained. Legislative mandate contained in Section 35F of the Act is intended to safeguard the interest of the revenue as the discretion provided in the earlier unamended Section 35F of the Act vested in the Tribunal gave rise to enormous cases where the litigant used to frequently cite the reason of undue hardship, which would consume the adjudicatory time and resources of the Tribunal or, as the case may be, of the Commissioner (Appeals). It was in order to suppress such mischief that the Parliament amended Section 35F of the Act. There is no good reason to waive the mandatory requirement of pre-deposit, which, in any case, cannot be waived as it is an appeal against the order passed by the Tribunal and not a writ petition under Article 226 of the Constitution of India. Application dismissed. - D. B. Excise Appeal No. 2/2019 - - - Dated:- 2-8-2019 - Mr. Justice Mohammad Rafiq And Mr. Justice Narendra Singh Dhaddha For the Appellant(s) : Mr. Arun Goyal. For the Respondent(s) : Mr. Sandeep Pathak with Ms. Vartika Mehra. JUDGMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that in view of the material on record, the petitioner therein appeared to be man of very limited means and directed waiver of the requirement of pre-deposit, however, with the further direction to the petitioner therein to furnish a bond and also provide reasonable security having 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 petition but filed an appeal, would not in any manner affect the competence of this Court in issuing appropriate directions. It is therefore prayed that imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson, however, subject to such conditions as the Tribunal may deem fit to impose so as to safeguard the interests of the revenue. However, Section 35F of the Act, amended vide the Finance (No.2) Act, 2014, which came into force w.e.f. 01.04.2014, has done away with that discretion. Section 35F now in the present form stands as under: 35F. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal.─ The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal, ─ (i) under sub-section (1) of section 35, unless the appellant has deposited seven and a half 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 a decision or an order passed by an officer of Central Excise lower in rank than the Commissioner of Central Excise; (ii) against the decision or order referred to in clause (a) of sub-section (1) of section 35B, unless the appellant has deposited seven and a half per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has been consciously sought to be curtailed and thus an amendment was made to Section 35F of CE Act requiring making of a pre-deposit of 7.5% in all cases subject to an upper cap of ₹ 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 waiver of the pre-deposit as far as the petitioner s appeal before the CESTAT is concerned. For all the above-mentioned reasons, the writ petition is dismissed but in the circumstances, with no order as to costs. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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