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TMI Blog2020 (8) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 of 2019 & D/76041 of 2019, D/MA (ROA)-77526 of 2019 & D/76042 of 2019 and D/MA(ROA)-77527 of 2019 & D/76043 of 2019, have been dismissed on the sole ground of non-compliance of pre-deposit under section 35F of Central Excise Act, 1944 (In short 'C.E.A'). Petitioners have further sought a direction upon the CESAT, Kolkata to hear and decide their appeal on its own merit without insisting upon pre-deposit, as stipulated under section 35F of C.E.A. 3. Petitioner's claim relates to waiver of pre-deposit under the amended section 35F of C.E.A. Both the pre-amended and amended Section 35F are extracted hereunder. Pre-amended section 35-F reads as under: "35F. Deposit, pending appeal, of duty demanded or penalty levied - where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case, the Commissioner (Appeals) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against; Provided that the amount required to be deposited under this section shall not exceed rupees ten crores; Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No.2) Act, 2014. Explanation.- For the purposes of this section "duty demanded" shall include,- (i) amount determined under section 11D; (ii) amount of erroneous Cenvat credit taken; (iii) amount payable under rule 6 of the Cenvat Credit Rules, 2001 or the Central Credit Rules, 2002 or the Cenvat Credit Rules, 2004." (Emphasis supplied) 4. It is pertinent to mention here that constitutional validity of the amended section 35-F has been upheld by the Coordinate Bench of this Court in WPT No. 6142/2014 (Sri Satya Nand Jha Vs. Union of India through the Secretary, Ministry of Finance, Department of Revenue & Others and analogous cases) reported in [2017 (3) JLJR 187]. It has been held thereunder that Section 35 and 35-B of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amended Section 35-F of the Act of 1944. 6. In this legal background, the factual matrix of the case of the petitioners is briefly stated hereunder: The petitioner Company is engaged in manufacturing of M.S. Ingots falling under Chapter 72 of the first Schedule to the Central Excise Tariff Act, 1985 and also procuring raw materials required for manufacture of sponge iron, pig iron, scrap, coal, etc. for the use in the manufacturing of this M.S. Ingot. On the basis of search conducted by the officials of Central Excise Department on 04.12.2015 in the petitioner Company and investigation, a show-cause notice was issued on 21.04.2016 upon it under section 11A(4) of C.E.A and also for the Central Excise Duty along with education cess and secondary and higher secondary education cess aggregating Rs. 11,73,32,395/- and also applicable interest thereupon in terms of section 11-AA along with penalty under section 11-AC(1)(c) of the Act of 1944 read with rule 25 of Central Excise Rules ('C.E.R' in short). The Directors Raj Jaiswal and Gyan Chand Jaiswal were also issued notice under rule 26 of C.E.R. All the Noticees submitted their replies thereto. On consideration of the materials on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv) Reliance was placed upon decision of Delhi High Court in the case of Pioneer Corporation Versus Union of India [2016 (340) ELT 63 (Del.) in support of the submission that under writ jurisdiction, High Court can exercise discretion and reduce the pre-deposit in rare and deserving cases, notwithstanding the amendment made under Section 35F of C.E.A. 8. It also pleaded that they had a prima facie case which should have been heard on merits since the impugned order was passed after more than nine months from the date of last personal hearing. Moreover, Panch witnesses Bir Karmakar and Bhima Lohar were interested Panch witnesses who have been routinely used as witnesses by the investigating authority in multiple proceedings. The premises raided were actually a go-down owned by M/s Cadbury and M/s Bournvita and no one from the side of the appellant was present at the time of search of their premises. It was alleged that the evidence relied upon from the hard disk was not in accordance with section 35-B of C.E.A and the data was also attempted to be manipulated. Further, data contained in the loose sheets and pocket diaries were not reliable since no standard accounting procedure wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fundamental defect as no such prayer to invoke extraordinary jurisdiction of this Court for waiver of mandatory pre-deposit under section 35-F of C.E.A has been made. 12. We now advert to the second issue, whether any exceptional grounds of undue hardship have been made out by the petitioners to seek waiver of the mandatory pre-deposit in preferring the appeal before the learned CESTAT, Kolkata? Section 35-F, as quoted above, regulates the right to appeal under section 35 and 35-B and is conditional upon making pre-deposit under Section 35-F. Therefore, there would be no appeal in the eye of law in absence of such pre-deposit under the amended Section 35-F. We have culled out the specific grounds inter-alia pleaded by the petitioners in their application before the learned CESTAT for waiver of mandatory pre-deposit. In substance, the plea is based upon financial hardship of the Director Gyan Chand Jaiswal who has expressed his financial difficulty in making pre-deposit in all the three appeals. There is no material or document to support inability of the petitioner Company to make mandatory pre-deposit. Petitioner Gyan Chand Jaiswal as a Director and Raj Jaiswal also as a Directo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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