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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHARGAV D. KARIA, D.N. RAY, JJ.
ALTAFHUSEN MAYUDDIN KHATRI – Petitioner
Versus
UNION OF INDIA – Respondent
Special Civil Application No. 17850 of 2021
Decided On : 28-10-2024
JUDGMENT :
BHARGAV D. KARIA, J.
1. Heard learned advocate Mr. Bhadrish S. Raju with learned advocate Mr. Dhanesh R. Patel for the petitioner and learned advocate Mr. Utkarsh R. Sharma for the respondents.
2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs:
(b) Pending the admission, final hearing and disposal of the present Special Civil Application be pleased to stay implementation of Order-In-Original No. VADEXCU 002-COM-007-18-19 dated 29.09.2018 in Show Cause Notice dated 08.08.2017 issued vide F. No. V.Ch.24(04)01/Altaf-KKGutkha/H-1/Prev/Adj/ Commr.2017-18.
(c) Pending the admission, final hearing and disposal of the present Special Civil Application be pleased to stay implementation, operation and execution of the Order-in- Original dated 25.03.2021 bearing No. VAD-EXCUS-002-COM-29-20-21, in Show cause notice dated 19.11.2019 bearing No. V Ch 24 (04)/Altaf-KK-Guthka/H-l/Prev/Adj/ Commr/03/2019-20 passed by Principal Commissioner, Central GST & Central Excise, Vadodara-II.
(d) Quash and set aside Show Cause Notice dated 08.08.2017 bearing F. No. V.Ch.24 (04) 01/AltafKK-Guthka/H-I/Prev/Adj/Commr. 2017-18 issued by Principal Commissioner, Central GST & Central Excise, Vadodara-I.
(e) Quash and set aside Show Cause Notice dated 19.11.2019 bearing F. No. IV/6-Pre/66/KKGuthka/2016-17/Gr.A/Part-II in V.Ch.24(04) 01/Altaf/KKGutkha/HI/ Prev/Adj/Commr/03/2019- 20 issued by Principal Commissioner, Central GST & Central Excise, Vadodara-II.
(f) Quash and set aside the Order-in-Original dated 25.03.2021 bearing No. VAD-EXCUS-002-COM-2920-21, passed by Principal Commissioner of Central GST & Central Excise, Vadodara-II.
(g) Quash and set aside Order-in-Original No. VADEXCU-002-COM-007-18-19 dated 29.09.2018 passed by Principal Commissioner of Central GST & Central Excise, Vadodara-II.
(gg) In alternative the condition of pre-deposit of 7.5% of the duty demanded, to challenge the Order in Original in appeal under Section 35B of the Central Excise Act, 1944 as mentioned under Section 35F of the Central Excise Act, 1944 be waived qua the petitioner herein.
(h) Pass any such order and further orders as may be deemed fit and proper in the interest of justice.”
3. This Court (Coram: Hon’ble Ms. Justice Sonia Gokani as her Ladyship was then and Hon’ble Ms. Justice Nisha M. Thakore) passed the following order on 16.12.2021:
1.1. We have heard Mr. Bhadrersh Raju, learned advocate.
2. At the outset, we have made it clear that because of the availability of the alternative efficacious remedy, we shall not enter into the merits of the matter as there is not even averments of the matter being covered by the exceptions for entertaining the writ petitions as provided in case of Whirlpool Corporation v. Registrar of Trade Marks Mumbai, (1998) 8 SCC 1.
3. Because of the financial difficulties pressed into service, the Court is inclined to consider in wake of the absence of the statutory powers of Customs Excise and Service Tax Appellate Tribunal (CESTAT) of exercising the discretion in making payment of 7.5% of the duty provided statutorily for preferring the appeal against the order-in-original.
3.1. It is thus made clear that on the aspect of merits, this Court has chosen not to entertain this petition.
4. Notice for final disposal, returnable on 23/12/2021.
5. On the returnable date, let instruction be obtained by the learned counsel on the issue raised.”
4. Learned advocate Mr. Raju, in view of the aforesaid order, has restricted his submissions only to the extent of persuading this Court to exercise discretion in favour of the petitioner by granting waiver of 7.50% of the Duty as pre-deposit for preferring an appeal before the Central Excise and Service Tax Appellate Tribunal (CESTAT) challenging the impugned order-in-original.
5. For the above purpose, so as to get waiver of the amo
The court upheld the mandatory pre-deposit requirement under Section 35F of the Central Excise Act, 1944, emphasizing that financial hardship does not justify waiver of this requirement.
Point of law: Order of the Tribunal, dismissing the appeal for non compliance of the mandatory pre-deposit, has to be upheld and the writ petition is liable to be dismissed.
The requirement of pre-deposit under Section 129E of the Customs Act is mandatory, with limited discretion for waiver in exceptional circumstances, reaffirmed by recent judicial precedents.
The power of a High Court under Article 226 of the Constitution to waive the pre-deposit condition under Section 129E of the Customs Act, 1962 is preserved and can be invoked in rare and deserving ca....
The court held that claims involving CENVAT credits were extinguished post-approval of the resolution plan under the Insolvency and Bankruptcy Code, reaffirming jurisdictional limits of the High Cour....
The main legal point established in the judgment is the court's discretion to waive the requirement of pre-deposit for filing an appeal in exceptional circumstances, especially when the condition imp....
There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the....
Payments made under protest can count as valid pre-deposits under Section 107 of the GST Act, ensuring equitable relief and proper adjudication in tax disputes.
The CESTAT exceeded its jurisdiction by restoring appeals without compliance with mandatory pre-deposit requirements under the Central Excise Act.
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