TMI Blog2023 (5) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... datory pre-deposit cannot be accepted and, therefore, the prayer made by learned counsel for the petitioner is rejected. However, considering the alternate prayer made by learned counsel for the petitioner for extension of time for depositing the amount of pre-deposit before the Customs, Excise Service Tax Appellate Tribunal is concerned, though in this petition only the notice/information of defect is put to challenge and no subsequent order is placed on record, considering the submission of learned counsel for petitioner of facing difficulties during Covid-19 Pandemic period, with a view to provide an opportunity to contest the appeal on merits, the alternate prayer made by learned counsel for the petitioner is allowed and the time for mandatory deposit is extended - Accordingly, three months further time is granted to the petitioner to deposit the amount of mandatory pre-deposit before the Tribunal, from the date of passing of this order. Petition disposed off. - WPT No. 116 of 2021 - - - Dated:- 9-5-2023 - HON'BLE SHRI PARTH PRATEEM SAHU, JUDGE For the Petitioner : Mr. Yogendra Aldak with Ms. Katyayani Vishnupriya , Advocate For the Respondent No. 2 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not deposited the requisite pre-deposit in terms of Section 35-F of the Central Excise Act 1944 (hereinafter referred to as the Act of 1944 ) read with Section 83 of the Act, information letter was issued to the petitioner intimating that mandatory deposit as envisaged under Section 129-E of the Customs Act. 1962 read with Section 35-F of the Act of 1944 has not been adduced. Aggrieved with the issuance of letter/notice dated 16.04.2021, petitioner has filed this petition. 3. Learned counsel for the petitioner would submit that the petitioner is suffering with financial hardship of post Covid -19 Pandemic. Due to lock-down during the effect of Covid -19 Pandemic in the State of Chhattisgarh, commercial operation and activities of the petitioner was adversely affected resulting in acute cash crunch. Due to various lock-down during Covid-19 pandemic, there was recession in the market and considering the said period, the petitioner waived off the delayed interest recoverable on delayed payment of lease rent/lease premium which reduced revenue collection of the petitioner. Petitioner, due to financial hardship, is not able to pay outstanding installments of loans and the lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... j Kumar Jha (supra) and Shubh Impex (supra), held those earlier decisions to be contrary to law laid down in Anjani Technoplast Ltd. Vs. Commissioner of Customs 2015 (326) ELT 472 (Del.). He contended that the decision in the case of Anjani Technoplast (supra) was challenged in an appeal before Hon'ble Supreme Court and the appeal was dismissed. 5. I have heard learned counsel for the parties and perused the records of the writ petition. 6. The subject matter of the petition is of waiver of mandatory deposit under Section 35-F of the Act of 1944 along with appeal against adjudicating authority. The provision under Section 35-F of the Act of 1944 reads as under:- 35-F Deposit of certain percentage of duty demanded or penalty imposed before filing appeal. - The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal- (i) under sub-section (1) of section 35, unless the appellant has deposited seven and a half per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally, it is trite that no court can issue a direction to any authority, to act in violation of the law. A reading of Section 35 F 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. 29. 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 Rs. 10 crores, and the second being that the requirement of pre-deposit would not apply to stay applications or appeals pending before any authority before the commencement of the Finance (No.2) Act, 2014, i.e. before 6th August, 2014. 30. Allowing the CESTAT to entertain an appeal, preferred by an assessee after 6th August 2014, would, therefore amount to allowing the CESTAT to act in violation, not only of the main body of Section 35F but also of the second proviso thereto, and would reduce the command of the legislature to a dead letter. 10. In above decision, High Court took note of its earli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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