TMI Blog2017 (8) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... ined to entertain the writ jurisdiction - petition dismissed - decided against petitioner. - WRIT PETITION NO. 5654 OF 2017 - - - Dated:- 3-8-2017 - ANOOP V. MOHTA SMT. ANUJA PRABHUDESSAI, JJ. Mr. Tapan Thatte a/w Adv. Sagar S. Tambe for the Petitioner Nos.1 and 2 Mr. Swapnil Bangur a/w Sham V. Walve for the Respondent No.1. ORAL JUDGMENT (Per: ANOOP V. MOHTA, J.): Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 2 The Petitioners have invoked the writ jurisdiction of this Court to challenge order dated 22.11.2016 passed by the Commissioner of Central Excise and Customs, Belapur. In the alternative the Petitioners have sought direction that Appeal filled by them should be heard with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndal Drugs Pvt. Ltd. V. Union of India reported in 2016 (340) ELT 67. 5. In response, the learned counsel for the Respondent contended that; the Petitioners have already filed the appeal; Section 35F contemplates the deposit of part of penalty or fine; they have neither deposited the amount nor raised any substantial grounds of arbitrariness or violation of principles of natural justice; or any sort of illegality including breach of principles of the natural justice. The decision relied upon by the Petitioners are distinguishable and are not applicable to the facts of the case. 6. We have considered the submissions advanced by the learned Counsels for the respective parties. The Petitioners herein have challenged the order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced on record. Hence,the two well recognised exceptions stated in the case of M/s. Baburam Prakash Chandra Maheshwari (supra) are not applicable to the facts of the present case. 8. It is pertinent to note that the Petitioners have already filed an appeal under Section 35B(1)(b) of the Excise Act. Section 35F of the Excise Act mandates deposit of certain percentage of duty demanded or penalty imposed before filing the Appeal. This Section reads thus:'' 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government of Andhra Pradesh Ors. V. Smt. P. Laxmi Devi 2008 (2) RCR Civil, 561 (Supra) would not be applicable in the facts of the present case. Similarly, the decision of Jindal Drugs Pvt.Ltd. V. Union of India 2016 (340) ELT 67 of Panjab and Haryana High Court is of no assistance as the Petitioners have no where alleged contravention of any provisions of Excise Act. As stated earlier, the only ground for invoking the writ jurisdiction or seeking waiver of pre-deposit, is that the Petitioners are not in a financial condition to deposit the amount. In our considered view, this cannot be considered as an exceptional circumstance to invoke the writ jurisdiction or to waive the pre-deposit, particularly when the amount required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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