TaxTMI 
TaxTMI 
2025 (9) TMI 203
X X X X Extracts X X X X
X X X X Extracts X X X X
....ills of Entry for import of brass ceramic cartridges. It is stated that the said Bills of Entry were assessed and cleared by the Customs Department. However, in respect of another Bill of Entry 3rd May, 2018 importing LED TV, the Petitioner is stated to have inadvertently classified the same as spare parts. The same were reassessed and pursuant to the same investigation was conducted on the ground of under-valuation and under declaration of the imported goods. 4. In respect of the said investigation a Show Cause Notice dated 4th October, 2022 was issued to the Petitioner and pursuant to the same the Order-in-Original came to be passed on 29th September, 2023. Vide the said order the Department has rejected the declared value of the imported goods, raised differential duty and imposed penalty on the Petitioner. The relevant portion of the said order reads as under: "ORDER (i) I reject the declared Value of Rs. 3,80,57,935/- (Rupees Three Crore Eighty Lakh Fifty Seven Thousand Nine Hundred and Thirty Five only) in the said 10 (7+3) Bills of Entry, as mentioned in Annexure-A and B to the SCN, under Rule 12(1) of the CVR, 2007 and re-determined the assessable value as Rs....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... have the financial capacity to pay the 7.5% of the said demand and penalty as pre-deposit. It is stated that the Petitioner's business is facing severe financial hardships and is burdened with several loans which were taken when the business was in good health. Hence, it is prayed that the condition for pre-deposit be waived by this Court. 8. It is submitted by the ld. Counsel for the Department that it is now a settled position in law that the requirement of pre-deposit under Section 129E of the Customs Act is a mandatory requirement and the prayer for waiver of the same cannot be entertained by this Court. In support of this position the ld. Counsel has relied upon the following decisions: (i) Kantilal Bhaguji Mohite v. Commissioner, 2019 SCC OnLine Bom 5547; (ii) NK Sharma v. Assistant Commissioner, W.P. (C) 10353/2025 [decided on 21st July, 2025]; (iii) Mark Splendour Nonwovens (P) Ltd. v. CCE, 2019 SCC OnLine Del 12502; (iv) Diamond Entertainment Technologies (P) Ltd. v. Commr. (CGST), 2019 SCC OnLine Del 12414 9. It is noted that the aforesaid decisions have been passed in respect of Section 35F of the Central Excise Act, 1944, which....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ired to be deposited under this section shall not exceed Rupees Ten crores: Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No. 2) Act, 2014 (25 of 2014)." 13. In Diamond Entertainment Technologies (supra) the Court was considering whether in cases where the show cause notice and the period of dispute was prior to the date of amendment to Section 35F of the Central Excise Act, 1944, the requirement of mandatory pre-deposit would be applicable. The Court while relying on the decision of this Court in Anjani Technoplast Ltd. v. Commissioner of Customs, (2015) 326 ELT 472 (Del.) has held that in view of the words "shall not" used in amended Section 35F of the Central Excise Act, 1944, there is an absolute bar on CESTAT from entertaining the appeals without the pre-deposit. The relevant portion of the said decision reads as under: "12. In view of the above decisions, it can no longer lie in the mouth of any assessee, filing an appeal, before the CESTAT, after 6th August, 2014, to contend that, merely because the period of disput....
X X X X Extracts X X X X
X X X X Extracts X X X X
....14, could be maintained without pre-deposit of the entire amount of duty confirmed against the concerned appellant by the authority below. 20. A reading of Section 35F 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 deposited 7.5 % of the duty confirmed against it by the authority below. 21. The two provisos in Section 35F relax the rigour of this command only in two respects, the first being that the amount to be deposited would not exceed Rs. 10 crores, and the second being that the requirement of pre-deposit would not apply to stay applications or appeals pending before any authority before the commencement of the Finance (No. 2) Act, 2014, i.e. before 6th August, 2014. 22. Allowing the CESTAT to entertain an appeal, preferred by an assessee after 6th August, 2014, would, therefore, amount to allowing the CESTAT to act in violation, not only of the main body of Section 35F but also of the second proviso thereto, and would reduce the command of the legislature to a dead letter. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e argued that, this writ court, in exercise of the inherent powers conferred on it by Article 226 of the Constitution of India in appropriate cases, may allow the appellant to prosecute its appeal before the CESTAT, without requiring to pay the mandatory pre-deposit...." [...] 39. The judgments in Dish TV India Ltd. case [Dish TV India Ltd. v. Union of India, 2020 SCC OnLine Del 2580], Diamond Entertainment case [Diamond Entertainment Technologies (P) Ltd. v. Commr., CGST, 2019 SCC OnLine Del 12414 : (2019) 368 ELT 579], Anjani Technoplast case [Anjani Technoplast Ltd. v. Commr. of Customs, 2015 SCC OnLine Del 13070 : (2015) 326 ELT 472] and Nimbus Communications Ltd. case [Nimbus Communications Ltd. v. Commr. of Service Tax, 2016 SCC OnLine Bom 6792] are distinguishable on facts as these judgments were primarily adjudicating the following two questions of law: (i) the issue of challenge to the constitutional validity of Section 129-E of the Act and Section 35-F of the CE Act; and (ii) whether the law as applicable pre-amendment (on or before 6-8-2014) in (i) above, would be applicable in the circumstances where the infringing act or the lis occu....