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TMI Blog2018 (3) TMI 1427X X X X Extracts X X X X X X X X Extracts X X X X ..... oms, Excise & Service Tax Appellate Tribunal(in short ... "the CESTAT"), by which the learned Tribunal dismissed the appeal on the ground that predeposit is a mandatory condition under Section 35F of the Central Excise Act, 1944 and same cannot be waived. 2. Against the order of dismissal, statutory appeal lie under Section 35(G) (2) of the Central Excise Act, 1944. 3. The facts of the of the case are that a demand of central excise duty of Rs. 50,53,29,468/- has been confirmed against the petitioner and equivalent amount of penalty has also been imposed upon the petitioner. He challenged the said order by filing a statutory appeal without pre-deposit. On 2/08/2017, the learned Tribunal came to the conclusion that pre-deposit is a mandato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter to put up their defence. We cannot convert this writ petition under Article 226 of the Constitution of India into an appellate forum in disregard of the statutory provisions of Section 35F and 35G of the Central Excise Act, 1994 nor we can direct the CESTAT to decide the appeal on merits without insisting on the mandatory per-deposit, in view of the provisions of Section 35F which come into force in 2014. After the amendment the discretion to waive pre-deposit on the ground of financial hardship and other reasons has been completely done away with and a very low fixed percentage of per-deposit which in the petitioner's case is 7.5% has been applied mandatorily in all cases. The decisions cited by the learned Senior Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that "the question of entertaining the petition does not arise as the liberty has already been granted in the earlier petition" and observed that "the petitioner is free to avail the remedy of filing the appeal. This Court does not find any reason to entertain a second writ petition once an order has already been passed by this Bench in the earlier round of litigation". Order dated 23/03/2017, passed in W.P. No.309/2017 and order dated 13/04/2017, passed in W.P. No.2299/2017 reads as under :- WP. No.309-2017 (M/S SHREE MARWAL SEWASHRAM THROUH SANJAY MARWAL Vs CUSTOMS CENTRAL EXCISE AND SERVICE TAX) 23-03-2017 Shri Goruav Chhabra, learned counsel for the petitioner. Learned counsel for the petitioner clearly stated before this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .12.2016. Against the order dated 06.12.2016 W.P. No.309/2017 was filed. The petitioner's contention is that the Principal Commissioner was informed about the pendency of the writ petition the final order has been passed on 27.12.2016. Learned counsel for the petitioner has placed reliance upon the judgment delivered in the case of Feldohf Auto & Gas Industries Ltd. vs. Union of India and another reported in (1998) 9 SCC 710. His contention is that alternative remedy of appeal is no bar in the matter of filing a writ petition. Reliance has been placed upon another judgment in the case of Union of India vs. Hindalco Industries reported in (2003) 5 SCC 194. It has been stated that the writ petition certainly is maintainable even at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has disposed of the earlier petition wherein the point of cross-examination of a witness was also under consideration, the writ petition was disposed of with a liberty to challenge to avail the remedy provided under the law, meaning thereby, to file an appeal. In the considered opinion of this Court, we cannot sit in the appeal over dated 23.03.2017. Once there is alternative remedy available under the law i.e. the remedy of appeal and Secondly, the petitioner has challenged the same show cause notice dated 06.12.2016, the question of entertaining the petition does not arise as the liberty has already been granted in the earlier petition. The petitioner is free to avail the remedy of filing the appeal. This Court does not find any reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would be contrary to the express legislative intent expressed in the amended Section 35F with effect from 6th August, 2014. 11. 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 per-deposit as far as the petitioner's appeal before the CESTAT is concerned. 10. On ..... X X X X Extracts X X X X X X X X Extracts X X X X
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