The Allahabad High Court held that the mandatory condition of pre-deposit prescribed under Section 35F of the Central Excise Act for filing appeals before the Customs Excise and Service Tax Appellate Tribunal cannot be waived under Article 226 of the Constitution of India.
Brief Facts:
The present petition was filed under Article 226 of the constitution, challenging the order passed by the respondent no.2/Commissioner, Central Goods and Service Tax, Ghaziabad. The alternative prayer of the petitioner is that the petitioner be relegated to appeal jurisdiction under Section 86 of the Finance Act, 1994 and direct the Tribunal to grant waiver of pre-deposit.
Contentions of the Applicant:
The learned counsel appearing on behalf of the petitioner has placed reliance on the judgement of Supreme Court in Ravi Gupta v. Commissioner of Sales Tax, Delhi and Another and a coordinate Bench judgement of this Court in M/s Shukla & Brothers v. Customs, Excise & Service Tax Appellate Tribunal & Ors. to buttress his argument that the writ Court has jurisdiction to reduce/waive the condition of predeposit in case prima facie case is made out by the petitioner due to undue hardship.
Observations of the court:
The court stated that the condition of the pre-deposit cannot be waived/modified by the High Court in its extraordinary discretionary writ jurisdiction. Any discretion to be exercised by the writ Court is judicial in nature and is required to be exercised only in accordance with law. If the High Courts were to interfere/tinker with the amount of pre-deposit to be deposited, the entire provision of pre-deposit would become otiose
The court relied on the decision in the case of Shri Subhash Jain v. Commissioner of Central Goods And Service Tax, wherein it was held that in the case of the Central Excise Act the Courts does not have the power to waive the pre-deposit and further in the decision in the case of Kantilal Bhaguji Mohite v. Commissioner of Central Excise & Service Tax, Pune-III, wherein a similar ratio was laid down with regard to waiver of pre-deposit.
Further, the court stated that the judgements cited by the counsel appearing on behalf of the petitioner are in relation to the period prior to 2014 wherein the amendments were brought in by the legislature in the respective Acts. Subsequent to the amendments, the law with regard to waiver of the pre-deposit by the High Court has taken a 'U-turn' and now the High Courts cannot in any manner exercise any discretion in waiving payment of predeposit.
The decision of the Court:
The court dismissed the petition.
Case Title: Ram Kishan Bairwa vs Central Excise Service Tax Appellate Tribunal and Ors.
Coram: Hon’ble Mr. Justice Shekhar B. Saraf
Case No.: WRIT TAX No. - 416 of 2024
Advocate for the Petitioner: Mahima Jaiswal
Advocate for the Respondent: A.S.G.I., Gopal Verma, Parv Agarwal
Read Judgment @LatestLaws.com
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