TMI Blog2019 (9) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... not be granted - Petition dismissed. - W.P.(C) 10091/2019 and CM No. 41727/2019 - - - Dated:- 18-9-2019 - CHIEF JUSTICE MR. C. HARI SHANKAR J. Petitioner Through: Mr. Praveen Kumar, Adv. Respondents Through: Ms. Sonu Bhatnagar, Sr. Standing Counsel with Mr. Vaibhav Joshi, Ms. Anushree Narain and Ms. Venus Mehrotra, Advs. for R-1 O R D E R D.N. PATEL, CHIEF JUSTICE (ORAL) CM No. 41727/2019 1. Exemption allowed, subject to all just exceptions. 2. The application is disposed of. W.P.(C) 10091/2019 1. This writ petition has been preferred with the following prayers: a) Issue a writ of mandamus to the Respondent No.2 to entertain the appeal filed vide diary no. 50471 of 2019 entitled as M/s Diamond Entertainment Technologies Pvt. Ltd. Vs. Commissioner, Central Goods Service Tax Commissionerate, Dehradun without requiring pre deposit of 10% alongwith the appeal which is ₹ 56,40,646/-; b) Pass any other or further order as may be deemed fit in the facts and circumstances of the present case. 2. We have heard counsel appearing for the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62, had come in for incisive examination, by the High Court of Allahabad, speaking through Dr. D.Y. Chandrachud, Chief Justice, (as his Lordship then was), in Ganesh Yadav v U.O.I., 2015 (320) ELT 711 (All), in respect of which para 9 of the judgment of this Court observes as under: 9. Dealing with the specific question as to whether the amended Section 35F of the CE Act would apply to the case of the Assessee, the Allahabad High Court held that the words in the amended Section 35F indicated that on and after the date of its enforcement an Assessee in appeal was required to deposit the stipulated percentage of duty and if it failed to do so, the CESTAT shall not entertain the appeal. The amended Section 35F would, therefore, apply to all appeals filed on and from the date of the enforcement of the amended Section 35F of the CE Act . (Emphasis supplied) 7. Taking stock of similar pronouncements in other cases, this Court proceeded to hold, on the question of applicability of the amended provisions of Section 35F of the Central Excise Act, 1944 or Section 129E of the Customs Act, 1962, to cases in which the periods of dispute and the date of is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 35F of the CE Act and holds that the amended Section 129E of the Act will apply to all appeals filed under Section 130 of the Act on or after 6th August, 2014. (Emphasis supplied) 8. The Division Bench of the High Court of Jharkhand, speaking through one of us (D.N.Patel, Chief Justice), also examined, in detail, the amendment of Section 35F of the Central Excise Act, in Sri Satya Nand Jha v. Union of India, 2016 SCC OnLine Jhar 22323. 9. Appreciating, inter alia, the judgment in Hossein Kasam Dada (supra), it was held, in para 31 of the judgment, thus: 31. In view of the aforesaid decision, endless litigations, arising out of waiver applications, have been brought to an end and looking to the very meager percentage of the amount to be deposited, Section 35F as amended cannot be said to be violative of Article 14 of the Constitution of India much less of Article 19(1)(g) of the Constitution of India. (xix) Thus, even if the show-cause notice has been issued prior to 6th August, 2014 or even if the Order-in-Original is passed prior to 6th August, 2014 or even if, the company and few of its Directors have preferred appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t out, in clear and unambiguous terms, that every appeal, before the CESTAT, filed after the amendment of Section 35F/129E would be maintainable only if mandatory pre-deposit were made. 13. The Civil Appeal, preferred against the said decision, also stood dismissed by the Supreme Court, as reported in Anjani Technoplast Ltd. v, CCE, 2017 (348) E.L.T A132 (SC). 14. Dismissal of a Civil Appeal, it is trite, results in merger of the judgment of the High Court, with the order passed by the Supreme Court and, thereby, elevates the judgment of the High Court to the status of the pronouncement of the Supreme Court. In this context, one may refer to the following passages from Kunhayamed v. State of Kerala, (2000) 6 SCC 359. 32. It may be that in spite of having granted leave to appeal, the Court may dismiss the appeal on such grounds as may have provided foundation for refusing the grant at the earlier stage. But that will be a dismissal of appeal. The decision of this Court would result in superseding the decision under appeal attracting doctrine of merger. But if the same reasons had prevailed with this Court for refusing leave to appeal, the order w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a subsequent case, adopting a view that an appeal, preferred before the CESTAT after 6th August, 2014, could be maintained without pre-deposit of the entire amount of duty confirmed against the concerned appellant by the authority below. 17. Equally, it is trite that no court can direct an authority to act in violation of the law as settled in innumerable authorities, including, inter alia, Vice-Chancellor, University of Allahabad v. Dr. Anand Prakash Mishra, (1997) 10 SCC 264, A.B.Bhaskara Rao v. C.B.I, (2011) 10 SCC 259, Manish Goel v. Rohini Goel, (2010) 4 SCC 393 and State of Bihar v. Arvind Kumar, (2012) 12 SCC 395. 18. A reading of Section 35F of the Central Excise Act reveals, by the usage of the peremptory words shall not therein, that there is an absolute bar on the CESTAT entertaining any appeal, under Section 35 of the said Act, unless the appellant has deposited 7.5 % of the duty confirmed against it by the authority below. 19. The two provisos in Section 35F relax the rigour of this command only in two respects, the first being that the amount to be deposited would not exceed ₹ 10 crores, and the second being that the requirem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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