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VIVEK AGARWAL, DEVNARAYAN MISHRA
Saisun Outsourcing Service Pvt. Ltd. – Appellant
Versus
Union Of India Through Principal Secretary (Finance) North Block New Delhi (Delhi) – Respondent
ORDER :
Order dictated in open Court.
1. This writ petition is filed taking an exception to the requirement of pre-deposit as contained in Section 35F of the Central Excise Act, 1944 (hereinafter referred to as the 'Act' for short), which is applicable to Service Tax also.
2. Learned counsel for the petitioner places reliance on the judgment of a Coordinate Benches in Madhya Pradesh Power Transmission Company Limited vs. Customs Excise and Service Tax Appellate Tribunal in W.P. No.9371/2008, decided on 20.10.2010 and also the judgment of Division Bench in Mukesh Kalway v. Customs Excise and Service Tax Appellate Tribunal in W.P. No.18742/2015 dated 14.07.2016, to submit that in both the cases cited above, Hon'ble Coordinate Benches have directed the respondent no.1 to hear and decide the appeal pending before the respondent no.1, without insisting for pre-deposit of the tax for hearing of the appeal.
3. Shri Abhijit Shrivastava, Senior standing counsel for Central Excise, in his turn, places reliance on the judgment of another Division Bench of this Court in W.P. No.5220/2016 (M/s. G.L. Sharma and Sons vs. the Commissioner) decided on 22.03.2016, wherein, Hon'ble Division Bench has hel
The amended Section 35F of the Central Excise Act, 1944 does not permit waiving the pre-deposit requirement based on prior provisions.
Pre-deposit in appeals can be validated even if made under a different head when procedural defects arise due to administrative issues.
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.
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 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.
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