TMI Blog2023 (2) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... its jurisdiction to do substantive justice. The opinion of the learned Coordinate Bench of this Court in Satya Nand Jha holds good till date. It further appears that Delhi High Court has also taken a similar view in the case of Shubh Impex [ 2018 (5) TMI 572 - DELHI HIGH COURT ]. Exercise of discretionary power under Article 226 of the Constitution of India is made to remedy extreme cases where the statutory provision does not permit of any exception. In the present case the petitioner unit is closed since 20.09.2006. The profit and loss statement enclosed as Annexure-1A-1 to the I.A. shows that for three consecutive financial years 2006-07, 2007-08 and 2008-09 the same is running in losses. The impugned demand is to the extent of Rs.12.50 Crores. The pre-deposit of 10% would come to Rs.1.25 crores which this Court finds would be onerous for the petitioner unit which is closed since 20th September 2006 to furnish in order to effectively avail of the remedy of appeal before learned CESTAT. The requirement of pre-deposit of 10% of the duty and penalty imposed or both for preferring appeal before learned CESTAT is waived. I.A. No.11581/2022 stands allowed - Petition disposed of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court. The Hon ble Calcutta High Court has set aside the Tribunal s Order demanding the pre-deposit. Being aggrieved, the department has filed appeal before the Division Bench, where neither any stay nor any interim order has been passed. Let it as may be. 4. With this background we heard both sides and perused the appeal record. 5. After hearing the lengthy arguments, it appears that Adjudicating Authority has relied on the technical opinion report submitted by Late Shri N.K. Batra, who is no more and cannot be cross-examined for the reasons given in his report. In the instant cases, there is no other evidence except electric consumption to support the charge of clandestine removal. 6. When it is so then we set aside all the impugned orders and remand to the Adjudicating Authority for denovo assessment by collecting the corroborative evidence but by providing reasonable opportunity to the appellant/assessee. Fresh evidences, if any, may be admitted as per law. 7. In the result, the appeals are allowed by way of remand. 4. Petitioner contends that even after the second remand the adjudicating authority has once again upheld the same demand vide the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.5 On examination of the evidence given in the show cause notice, I find that the Jharkhand State Electricity Board authorities were maintaining the Report of Load Survey Data which provides details of half hourly consumption of electricity of various units. The said report for the month of August, 2005 was procured by the investigating team. The report when examined in the context of daily production report of the noticee indicates that there was nil recorded production in their Daily Production Register (Daily Stock Account), a statutory document, even when the flow of electricity was continuous as on other days when production was shown. For instant, on 15.08.2005, 16.08.2005 and 26.08.2005, there was no recorded production but the electricity consumed was as usual. The noticee has not contested this specific allegation, in their defence reply, which shows that they consumed substantial quantity of electricity to manufacture excisable goods but did not account for the same in their books of account. The Department has shown specific evidence, which has not been refuted by the noticee. Therefore, I do not find merit in the argument of the noticee that the allegations have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Constitution of India in the circumstances in which the petitioner is placed. It is submitted that the requirement of pre- deposit was waived by learned Calcutta High Court vide order dated 24th April 2014 in the appeal preferred against the 1st order in original passed in W.P. 1007(W) of 2014 (Annexure-7). 8. Learned counsel for the respondents has opposed the prayer on the limited plea of waiver of pre deposit relying upon the decision of Kerala High rendered in W .P.(C) No.25453/2021 judgment dated 24th March 2022 , para-8 and 9 and also the decision of this Court rendered in the case of Raj Jaiswal Vrs. Union of India Anr. W.P.(T) No.532 of 2020 and other analogous cases, judgment dated 31st July 2020. 9. Learned counsel for the petitioner has distinguished the decision rendered by this Court in the case of Raj Jaiswal by relying upon the observations made by this Court at para-12 of the judgment. It is submitted that in the case of Raj Jaiswal there was no separate prayer for waiver of pre- deposit and moreover the plea was based upon the financial hardship of the Director Gyan Chand Jaiswal who had expressed his financial difficulty in making pre-deposit i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling with an analogous provision, where discretion to waive pre-deposit was limited only to the extent of 25 per cent of the tax, was upheld by this Court. To the same effect is the decision of this Court in Shyam Kishore v. Municipal Corpn. of Delhi. 4. For the reasons contained in the said decisions, we hold that the impugned provisions are valid. It is, of course, clear that if gross injustice is done and it can be shown that for good reason the court should interfere, then notwithstanding the alternative remedy which may be available by way of an appeal under Section 20 or revision under Section 21, a writ court can in an appropriate case exercise its jurisdiction to do substantive justice. Normally of course the provisions of the Act would have to be complied with, but the availability of the writ jurisdiction should dispel any doubt which a citizen has against a high-handed or palpable illegal order which may be passed by the assessing authority. (Emphasis Supplied) 11. The opinion of the learned Coordinate Bench of this Court in Satya Nand Jha holds good till date. It further appears that Delhi High Court has also taken a similar view in the case of Shu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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