JUDGMENT :

Mohammad Rafiq, J.

1. This appeal has been preferred by the appellant, M/s. Triputi Commodities, challenging order dated 24.10.2018 passed by the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi (for short 'the Tribunal') whereby application filed by the appellant seeking waiver from pre-deposit of 7.5% of the duty demanded for entertaining the appeal, which the appellant filed against Order-in-Original dated 11.01.2017 issued on 12.01.2017, has been dismissed.

2. Initially, the appellant approached this Court by way of filing D.B. Civil Writ Petition No. 8612/2018 inter alia with the prayer that in view of its poor financial condition, appellant was not in a position to pay the huge amount of pre-deposit, it should be granted waiver from the requirement of pre-deposit. This Court vide order dated 27.04.2018 disposed of the writ petition requiring the appellant to produce its financial condition and turn over by way of application before the Tribunal, which was directed to pass appropriate order looking to financial condition and stability of the appellant for pre-deposit. It is this application, which the Tribunal has dismissed by the impugned order.

3. Mr. Arun Goyal, learned counsel for the appellant argued that the Tribunal while rejecting the application of the appellant has wrongly observed that there was no specific direction by this Court to waive the condition of pre-deposit. The Tribunal has misread and misapplied the judgment of Allahabad High Court in Ganesh Yadav Vs. Union of India, 2015 (320) E.L.T. 711 (All.) wherein it was clearly held that the High Court under Article 226 of the Constitution is vested with the jurisdiction to dispense with the requirement of pre-deposit in an appropriate case and the power of the Court under Article 226 of the Constitution is not taken away. Even the amended Section 35F of the Central Excise Act, 1944 (for short 'the Act') has not abridged the power of the High Court under Article 226 of the Constitution. Learned counsel relied upon judgment of Delhi High Court in Manoj Kumar Jha Vs. Directorate of Revenue Intelligence, WP(C) 3392/2018, CM APPL. 13411/2018 decided on 03.12.2018 and submitted that the Division Bench of Delhi High Court in that case observed that in view of the material on record, the petitioner therein appeared to be man of very limited means and directed waiver of the requirement of pre-deposit, however, with the further direction to the petitioner therein to furnish a bond and also provide reasonable security having regard to list of immovable properties produced before the Court. It is argued that the appellant has already, in terms of order dated 06.03.2019 passed by this Court, deposited 50% of the pre-deposit amount and therefore, if waiver of entire amount of pre-deposit is not granted to it, the appellant should be granted waiver to the extent of remaining 50%.

4. Learned counsel submitted that since the impugned order passed by the Tribunal was appealable, therefore, the appellant had to, in any case, file present appeal. Since the appellant had earlier approached this Court by filing writ petition and this Court directed the Tribunal to consider the financial hardship of the appellant, merely because the appellant has now not filed the writ petition but filed an appeal, would not in any manner affect the competence of this Court in issuing appropriate directions. It is therefore prayed that impugned order may be set aside and the Tribunal may be directed to decide the appeal of the appellant on merits without insisting on requirement of pre-deposit.

5. Mr. Sandeep Pathak, learned counsel appearing on behalf of the respondent opposed the appeal and submitted that post amendment Section 35F of the Act does not leave any discretion with the Tribunal to waive the requirement of pre-deposit. However, in the erstwhile regime, the Tribunal was vested with considerable discretion with respect to waiver of pre-deposit of 7.5%