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CX - It is not possible for Court, in exercise of its jurisdiction under Article 226 of Constitution, to modify mandatory conditions set out in Section 35F of CE Act on any ground whatsoever: HC

By TIOL News Service

NEW DELHI, APRIL 29, 2016: AGAINST the order dated 30.03.2015 passed by the CCE, Delhi, the Petitioner had filed an appeal before the CESTAT and the same was dismissed by an order dated 27th November 2015.

In terms of Section 35F of the CEA, 1944it is mandatory for the Petitioner to have deposited 7.5% of the demand of duty and penalty for its appeal to be entertained. The CESTAT in its impugned order noticed that no pre-deposit as against the compulsory deposit of 7.5 % of the penalty of Rs.42 lakhs had been made till that date.

As mentioned, the appeal was dismissed and, therefore, the present petition.

The Petitioner has also challenged the validity of Section 35F of the CE Act to the extent it mandates a pre-deposit of 7.5% of the demand of duty and penalty for the appeal to be entertained.

The High Court observed that the said provision of 35F of CEA, 1944 is similar to Section 129E of the Customs Act, 1962 which was considered by the Court in its order dated 20th October 2015 in Customs Appeal No. 19/2015 (Anjani Technoplast Ltd. v. The Commissioner of Customs) - 2015-TIOL-2568-HC-DEL-CUS wherein the High Court concurred with the decision of the High Court of Allahabad in Ganesh Yadav v. Union of India - 2015-TIOL-1490-HC-ALL-ST which upheld the constitutional validity of Section 35F of the CE Act.

It was, therefore, observed that the Court is not inclined to entertain a challenge to the constitutional validity of Section 35F of the CE Act.

And, therefore, the Petitioner having failed to comply with the statutory mandatory requirement of depositing the 7.5% of the demand of duty and penalty, the CESTAT was right in dismissing the Petitioner's appeal by its order dated 27th November, 2015, the High Court concluded.

To this, the Petitioner urged that they are in great financial difficulty and need some more time to pay the pre-deposit amount.

The High Court observed that it is unable to accede to the request as, it was not possible for the Court, in exercise of its jurisdiction under Article 226 of the Constitution, to modify the mandatory conditions set out in Section 35F of the CE Act on any ground whatsoever.

The Writ petition was dismissed.

(See 2016-TIOL-843-HC-DEL-CX)


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