Case Law Details
Santhosh Kumar K The Commissioner (Kerala High Court)
A perusal of the statutory provisions will reveal that the amendment to section 35F of the Central Excise Act r/w Section 86 of the Finance Act, 1994, clearly manifest the intention of the legislature that the waiver of pre-deposit, which was being resorted to, quite often by the courts of law, needed to be amended to make the pre-deposit mandatory. Thus, after the Amendment Act came into force, no discretion is available with the courts of law to waive the mandatory requirement of pre-deposit of 7.5% even if it is assumbed to be onerous in the circumstances of the case. In the decision cited by the learned Counsel for the respondents ie. Dish TV India’s case (supra) after considering the decisions of the Delhi High Court itself, the Division Bench of the said Court came to the conclusion that after the amendment, there is no question for any waiver of pre-deposit, and that law does not permit such waiver. When the Statute does not provide for waiver of a pre-deposit, it is impermissible for this Court to act contrary to the legislative intention merely on the plea of financial hardships. If such pleas are entertained, and directions are issued for waiving the pre-deposit, there will be no end to such demands. Further if orders are issued, contrary to the Statute the same will destroy the very scheme of the Statute including the consequent amendment.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
Petitioner seeks relief from the burden of making a pre-deposit under Section 86 of the Finance Act, 1994 (‘for short ‘the Act’) for preferring the appeal before the Central Excise and Service Tax Appellate Tribunal (CESTAT).
2. Petitioner is a proprietor of an establishment by name M/s. Swathi Constructions at Shoranur and is engaged in laying of power lines on behalf of persons, who had executed contracts with the Power Grid Corporation of India.
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