The amended Section 35F of the Central Excise Act, 1944 does not permit waiving the pre-deposit requirement based on prior provisions.

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 held that "Notably, no plea of undue hardship was raised by the petitioner before the Commissioner to invoke the proviso to sub-section (1) of section 35F of the Act."

"The sole contention of petitioner before Appellate Authority as well as before this Court is that the amounts have already been deposited by M.P. Housing Board. It was not necessary for the petitioner to comply with the requirement of pre-deposit." Under such facts and circumstances, request of the petitioner therein was rejected.

5. In the present case, petitioner's contention is that in his bank accounts, a paltry sum is lying and therefore, he is not in a position to fulfill the requirements of Section 35F of the Act.

6. Reliance is also placed on the book titled "Treatise on Service Tax" Law, Practice and Procedure with Notification and Circulars, Volume-1, 18th Edition, September, 2014, by Sunil B. Gabhawalla Chartered Accountant and reading Chapter 43, Clause 43.5.1.2. It is submitted that "However, the appellate authority may dispense with the requirement of pre-deposit on an application made by the appellant if in the opinion of the appellate authority, pre-deposit may cause undue hardship to the appellant. Where an application for waiver of pre-deposit is filed, the appellate authority shall try to dispose off the application within a period of 30 days from the date of filing." Thus, placing reliance on the aforesaid, it is submitted that the petitioner be given a liberty to approach the competent authority to move an application before CESTAT to waive the requirement of pre-deposit.

7. It appears from the provisions which exist as on today that Section 35F of the Act, prior to amendment, which was carried out vide Act 25 of 2014, Section 105 which came into effect from 06.08.2014 reads as under:-

"[35F. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal.—The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal,—

(i) under sub-section (1) of Section 35, unless the appellant has deposited seven and a half per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the Commissioner of Central Excise;

(ii) against the decision or order referred to in clause (a) of sub-section (1) of Section 35-B, unless the appellant has deposited seven and a half per cent. of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against;

(iii) against the decision or order referred to in clause (b) of sub-section (1) of Section 35-B, unless the appellant has deposited ten