TMI Blog2018 (3) TMI 1427X X X X Extracts X X X X X X X X Extracts X X X X ..... gh 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. Petition dismissed. - W.P. No. 18996/2017 - - - Dated:- 22-3-2018 - Hon'ble Mr Justice P.K. Jaiswal And Hon'ble Mr Justice Virender Singh Shri A. K. Chitale, learned Senior Counsel with Shri Vijay Tulsiyan, learned counsel for the petitioner Shri Amol Shrivastava, learned counsel for the respondents ORDER Per P. K. Jaiswal, J. By this writ petition under Article 226 and 227 of the Constitution of India, the petitioner is pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel for the respondents has submitted that all the aforesaid judgments were of prior to 2014. In 2014, Section 35F of Central Excise Act, 1944 was amended and as per the amended provisions, along with the appeal, the petitioner has to submit the receipt regarding deposit of 7.5% of the total amount. Any waiver of predeposit would be in contravention to the mandatory provision of Section 35F of the Act. It is further denied that the duty demand would accrue only from 1.03.2013. It is submitted that the present case is not of retrospective application of law as is being projected by the petitioner, here the dispute is regarding benefit of the Notification no.49/2008. As many as nine opportunities were granted to the petitioner befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Leave to Appeal (C) No(s)31297/2016 dated 7/11/2016. 7. Prior to filing of this writ petition, two writ petitions have been filed by the petitioner. One Writ Petition No.309/2017 dated 23/03/2017 was filed during pendency and proceedings of order in Original No.80/PR.COMMR/CEX/IND/2017 dated 27/02/2017 against the OIO issuing authority i.e. respondent No.2 on the ground that the order was issued ex-parte. The said writ petition was disposed of with a direction that once the order has been passed in the matter the present petition stands disposed of with liberty to the petitioner to take appropriate steps and to avail the remedy available under the law . Thereafter, on 13/04/2017 he filed W.P. No.2299/2017 dated 13/04/2017 against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt has filed the present petition under Article 226 of the Constitution of India against for quashment of show cause notice dated 16.12.2016 passed by the Principal Commissioner, Customs Central Excise and Service Tax, Indore dated 27.02.2017 passed by again the Principal Commissioner. The petitioner's contention is that the petitioner is a proprietorship firm engaged in a business of manufacturing of Herbal Products and a show cause notice dated 08.02.2016 was issued to the petitioner along with other persons calling upon them to show cause notice as to why excise duty should not be charged as reflected in the show cause notice and show cause notice was issued based upon the statement of Sanjay Marwal and Piyush Patel. Petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner. However, the fact remains that earlier also writ petition was filed challenging the show cause notice dated 06.12.2016. During pendency of the aforesaid writ petition the order dated 27.12.2017 was passed by the Principal Commissioner/respondent No.1. The Division Bench of this Court by order dated 23.03.2017 passed in Writ Petition No.309/2017 has passed the following order: Learned counsel for the petitioner clearly stated before this Court that during the pendency of the present writ petition the respondent No.1 has passed the final order on 27.02.2017 in the writ petition. In the considered opinion of this Court that once the final order has been passed in the matter, the present petition stands disposed of wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... great financial difficulty and needs some more time to pay the pre-deposit amount has held that the Court is unable to accede the request and therefore considering the question of financial difficulty dismissed the writ petition. 9. Similar is the view taken in the matter of Pioneer Corporation v. Union of India[2016 (340) E.L.T. 63(Del.)]. Para 10 and 11 of the judgment are relevant which reads as under :- 10. Under section 35F of the CE Act as it stood prior to 6th August, 2014, a discretion was available to the CESTAT to consider the financial hardship and accordingly determine the per-deposit amount. That discretion has been consciously sought to be curtailed and thus an amendment was made to Section 35F of CE Act requiring maki ..... X X X X Extracts X X X X X X X X Extracts X X X X
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