TaxTMI 
TaxTMI 
2023 (5) TMI 862
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....te writ, order or direction in the nature thereof, quashing the Defect Notice dated 16.04.2021 issued by the Registry of the Hon'ble Tribunal. 10.2 Issue a writ of Mandamus or any other appropriate writ, order or direction in the nature thereof, directing the Hon'ble Tribunal to admit and hear the appeal on merits, without insisting on payment of pre-deposit. 10.3 Issue any other writ, order or direction as this Hon'ble Court may deem just and fair under the circumstances of the case. 10.4 For such further and other reliefs as the nature and circumstances of the case may require." 2. Facts relevant for disposal of this writ petition is that petitioner is a statutory body created through Notification....
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....he Central Excise Act 1944 (hereinafter referred to as the "Act of 1944") read with Section 83 of the Act, information letter was issued to the petitioner intimating that mandatory deposit as envisaged under Section 129-E of the Customs Act. 1962 read with Section 35-F of the Act of 1944 has not been adduced. Aggrieved with the issuance of letter/notice dated 16.04.2021, petitioner has filed this petition. 3. Learned counsel for the petitioner would submit that the petitioner is suffering with financial hardship of post Covid -19 Pandemic. Due to lock-down during the effect of Covid -19 Pandemic in the State of Chhattisgarh, commercial operation and activities of the petitioner was adversely affected resulting in acute cash crunch. Due t....
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....petitioner, in alternate, submits that if for any reason, this Court is not inclined to accept the prayer made in the writ petition for waiver of the mandatory deposit under Section 35-F of the Central Excise Act 1944, then reasonable period of time may be granted for compliance the provision under Section 35-F of the Act of 1944 for depositing the pre-deposit amount. 4. Mr. Maneesh Sharma, learned counsel for the respondent opposes the submission of learned counsel for the petitioner and would submit that writ petition is not maintainable making prayer only of waiver of mandatory pre-deposit under Section 35-F of the Act of 1944. He also pointed out that the notice which is under challenge in this writ petition is a 'Defect Notice&#....
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....lf 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 35B, 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 subsection (1) of section 35B, unless the appellant has deposited ten per cent. ....
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....tipulated percentage of duty and if it failed to do so, the CESTAT shall not entertain the appeal. The amended Section 35A would, therefore, apply to all appeals filed on and from the date of the enforcement of the amended Section 35F of the CE Act...." (Emphasis supplied) 9. High Court of Delhi in the case of M/s Vish Wind Infrastructure LLP (supra) held thus: "28. Equally, it is trite that no court can issue a direction to any authority, to act in violation of the law. A reading of Section 35 F of the Central Excise Act reveals, by the usage of the peremptory words "shall not" therein, that there is an absolute bar on the CESTAT entertaining any appeal, under Section 35 of the said Act, unless the appellant has deposi....