TaxTMI 
TaxTMI 
2023 (2) TMI 232
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....uthority relied upon the technical opinion report of productivity of Induction Furnace prepared by one Dr. N.K. Batra of IIT, Kanpur and reports of All India Induction Furnace Association. 3. After the first round of adjudication, petitioner went in appeal and the order was remanded to the original authority vide appellate order dated 10th December 2008 (Annexure-5). Once again the adjudicating authority passed an order in original upholding the same demand which was then taken in appeal to learned CESTAT, Kolkata and decided vide order dated 28th November 2017 (Annexure-8). The order of learned CESTAT, Kolkata reads as under :- "1. All the appeals have been filed by the appellants against the different Order-in-Original and Order-in-Appeal for the different period, but issue in all the appeals is identical, hence, all the appeals are disposed of by this consolidated order for the sake of convenience. 2. The brief facts of the case are that the appellants are engaged in the manufacturing of M.S. Ingot and alike products. On the basis of the informant, the consumption of electricity was checked which found on higher side. So, a case of clandestine removal was ma....
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....er has also referred to the findings of the adjudicating authority in the impugned order in original at paragraph-3.3 and 3.5 which are extracted hereunder :- "3.3 I find that the calculation of manufacture of excisable goods viz M S Ingots has been done in the show cause notices on the basis of consumption of electricity @ 1000 units per MT of M S Ingots manufactured. The noticee stated that their consumption of electricity for one MT of production of M S Ingots is 2000-2200 units. There is auxiliary consumption of units which includes consumption of electricity for pump house, bundling machine, labour quarters, staff colony, plant lighting, industrial man coolers, pollution control equipments, welding machines, cranes for dispatches etc., water filtration system, exhaust fans and blower fans. However, these activities are not unique to the noticee. They are to be found in other units as well. They are general in nature and have been taken care of in the Technical Opinion Report of Dr. N K Batra of IIT, Kanpur. The noticee's contention that the said report is based on the process adopted in USA/Russia and not in India, specially in Jharkhand, is not acceptable because I a....
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....e Act introduced w.e.f. 6th August 2014. It is submitted that the amended provision does not allow waiver of pre-deposit before the appellate authority or learned CESTAT. Therefore, petitioner on grounds of extreme financial hardship has invoked the jurisdiction of this Court under Article 226 of the Constitution of India to allow waiver of pre-deposit so that the appeal can be decided on merits by learned CESTAT. 7. Learned counsel for the petitioner has relied upon the decision rendered by Coordinate Bench of this Court in the case of Satya Nand Jha Vrs. Union of India & Ors, reported in 2016 SCC Online Jhar 2323, para-19 and 21. It is submitted that the special leave petition preferred by the petitioner was dismissed by the Apex Court vide order dated 7th November 2016 in Special Leave to Appeal (Civil) No.31297/2016. Reliance has also been placed upon a decision of Delhi High Court rendered in the case of Shubh Impex Vrs. Union of India & Ors. reported in 2018 SCC Online Del 8793, para-8 where the learned court had, considering the financial condition and background of the petitioner, waived the pre-deposit however subject to payment of Rs.5,00,000/- for preferring an appeal....
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....er :- "19. We are not in agreement with this contention also, mainly for the reason that in such extreme cases always the assessees can take recourse to the writ jurisdiction under Article 226 of the Constitution of India. Few extreme cases will not make the substituted Section 35F of the Act, 1944 unconstitutional. All care can be taken with respect to such types of cases under Article 226 of the Constitution of India. "Ubi jus, ibi remidum" - where there is wrong, there is remedy. Exceptional assessee can always take shelter of writ jurisdiction, otherwise, section itself has waived 92.5% or 90% of the deposit of the tax and has compelled only for 7.5% or 10% of the duty demanded or penalty imposed to be deposited. The newly substituted Section 35F of the Central Excise Act, 1944 is more than reasonable in comparison to earlier provision of Section 35F. It appears that now a days it has become a fashion to challenge even those provisions, which are more than reasonable, in the court of law and these petitions are not exception to this trend. .................. 21. Thus, in extreme cases, the assessee-petitioner can take recourse under Article 226 of the....