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2019 (8) TMI 676 - HC - Central ExciseWaiver of pre-deposit - case of petitioner is that in view of its poor financial condition, appellant was not in a position to pay the huge amount of pre-deposit - section 35F of CEA, 1944 - HELD THAT:- Section 35F of the Act, as it earlier stood, invested the Tribunal with the discretion to dispense with the requirement of pre-deposit, if it was of the opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, 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(i) of the Act provides that unless the appellant has deposited 7.5% of the duty in case where the 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, the Tribunal 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.
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