Pre-deposit challenge failed in writ jurisdiction, but taxpayer may seek relief before Tribunal on attachment and inability to pay

A writ challenge to a pre-deposit direction under Section 35-F of the Central Excise Act was declined because the petitioner had not raised before the Tribunal the factual plea that its property was attached and it lacked means to make the cash deposit. The High Court refused interference in writ jurisdiction on that basis, but granted liberty to the petitioner to approach the Tribunal with an appropriate application placing that fact on record. The Tribunal was directed to decide such application in accordance with law, and the appeal was protected from dismissal for non-compliance with the pre-deposit requirement until then.

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Issues: Whether the writ petition challenging the pre-deposit order under Section 35-F of the Central Excise Act was liable to be entertained on the ground that the petitioner's property had been attached and it had no means to make the cash deposit.

Analysis: The petitioner's plea regarding attachment of property and alleged inability to deposit the amount was not raised before the Tribunal. In view of that factual position, interference in writ jurisdiction was declined. At the same time, the petitioner was left at liberty to move an appropriate application before the Tribunal bringing that fact to its notice, and the Tribunal was directed to decide such application according to law. Till then, the appeal was protected from dismissal for non-compliance with the pre-deposit requirement.

Conclusion: The challenge to the pre-deposit order was rejected, with liberty to the petitioner to seek appropriate relief before the Tribunal on the stated ground.

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