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Kim Steel Strips Pvt. Ltd., Sanjiv Ajodia prasad Guta Versus The Commissioner of Central Excise and Customs, Belapur

2017 (8) TMI 595 - BOMBAY HIGH COURT

Maintainability of appeal - alternative remedy - Section 35B (1)(b) of the Excise Act - Held that: - 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 deposited is 7.5 per cent of the duty demanded - .....

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inally 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 without insisting on monetary pre-deposit under Section 35 of the Central Excise Act,1944. (The Excise Act). 3. The learned Counsel for the Respondent has raised a preliminary objection about the .....

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e has submitted that deposit of 7.5 % of duty on penalty is the prerequisite condition for filing of the appeal. Such deposit condition is onerous. He has submitted that the Petitioners are not able to pay such amount. He submits that the Petitioners cannot be deprived of the legal remedy solely due to his financial difficulties. He, therefore, contends that this is a fit case to entertain the writ petition or to waive the monetary pre-deposit. The learned Counsel for the Petitioners have relied .....

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lates 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 .....

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ettled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the High Court under Art.226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course.( See the decisions of this Court in Carl Still G.m.b.H.v. State of Bihar, AIR 1961 SC 1615 and Bengal Immunity Co. Ltd. V. State of Bihar, (1955) 2 .....

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rounds have been placed 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 cert .....

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in clause (a) of sub-section (1) of section 35B, unless the appellant has deposited seven and a half percent of the duty demanded or penalty imposed or both, in pursuance of the decision or order appealed against; (iii) against the decision or order referred to in clause (b) of sub-section (1) of section 35B, unless the appellant has deposited ten per cent of the duty demanded or penalty imposed or both, in pursuance of the decision or order appealed against; Provided that the amount required to .....

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