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2023 (2) TMI 232 - HC - Central ExciseSeeking waiver of pre deposit - Clandestine Removal - suppressed production of MS Ingots - reliance placed upon technical opinion report of productivity of Induction Furnace - HELD THAT:- It is true that the amended provisions of Section 35F do not permit of any waiver. The vires of the aforesaid provision has been upheld by this Court in the case of Satya Nand Jha [2016 (7) TMI 1307 - JHARKHAND HIGH COURT]. This Court however has also held that waiver of pre-deposit can be allowed in extreme cases in exercise of writ jurisdiction under Article 226 of the Constitution of India by holding that the impugned provisions are valid. It is, of course, clear that if gross injustice is done and it can be shown that for good reason the court should interfere, then notwithstanding the alternative remedy which may be available by way of an appeal under Section 20 or revision under Section 21, a writ court can in an appropriate case exercise its jurisdiction to do substantive justice. The opinion of the learned Coordinate Bench of this Court in Satya Nand Jha holds good till date. It further appears that Delhi High Court has also taken a similar view in the case of Shubh Impex [2018 (5) TMI 572 - DELHI HIGH COURT]. Exercise of discretionary power under Article 226 of the Constitution of India is made to remedy extreme cases where the statutory provision does not permit of any exception. In the present case the petitioner unit is closed since 20.09.2006. The profit and loss statement enclosed as Annexure-1A-1 to the I.A. shows that for three consecutive financial years 2006-07, 2007-08 and 2008-09 the same is running in losses. The impugned demand is to the extent of Rs.12.50 Crores. The pre-deposit of 10% would come to Rs.1.25 crores which this Court finds would be onerous for the petitioner unit which is closed since 20th September 2006 to furnish in order to effectively avail of the remedy of appeal before learned CESTAT. The requirement of pre-deposit of 10% of the duty and penalty imposed or both for preferring appeal before learned CESTAT is waived. I.A. No.11581/2022 stands allowed - Petition disposed off.
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