JUDGMENT : BHARGAV D. KARIA, J. 1. Heard learned advocate Mr. Bhadrish S. Raju with learned advocate Mr. Dhanesh R. Patel for the petitioner and learned advocate Mr. Utkarsh R. Sharma for the respondents. 2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs: “(a) Admit the present Special Civil Application. (b) Pending the admission, final hearing and disposal of the present Special Civil Application be pleased to stay implementation of Order-In-Original No. VADEXCU 002-COM-007-18-19 dated 29.09.2018 in Show Cause Notice dated 08.08.2017 issued vide F. No. V.Ch.24(04)01/Altaf-KKGutkha/H-1/Prev/Adj/ Commr.2017-18. (c) Pending the admission, final hearing and disposal of the present Special Civil Application be pleased to stay implementation, operation and execution of the Order-in- Original dated 25.03.2021 bearing No. VAD-EXCUS-002-COM-29-20-21, in Show cause notice dated 19.11.2019 bearing No. V Ch 24 (04)/Altaf-KK-Guthka/H-l/Prev/Adj/ Commr/03/2019-20 passed by Principal Commissioner, Central GST & Central Excise, Vadodara-II. (d) Quash and set aside Show Cause Notice dated 08.08.2017 bearing F. No. V.Ch.24 (04) 01/AltafKK-Guthka/H-I/Prev/Adj/Commr. 2017-18 issued by Principal Commissioner, Central GST & Central Excise, Vadodara-I. (e) Quash and set aside Show Cause Notice dated 19.11.2019 bearing F. No. IV/6-Pre/66/KKGuthka/2016-17/Gr.A/Part-II in V.Ch.24(04) 01/Altaf/KKGutkha/HI/ Prev/Adj/Commr/03/2019- 20 issued by Principal Commissioner, Central GST & Central Excise, Vadodara-II. (f) Quash and set aside the Order-in-Original dated 25.03.2021 bearing No. VAD-EXCUS-002-COM-2920-21, passed by Principal Commissioner of Central GST & Central Excise, Vadodara-II. (g) Quash and set aside Order-in-Original No. VADEXCU-002-COM-007-18-19 dated 29.09.2018 passed by Principal Commissioner of Central GST & Central Excise, Vadodara-II. (gg) In alternative the condition of pre-deposit of 7.5% of the duty demanded, to challenge the Order in Original in appeal under Section 35B of the Central Excise Act, 1944 as mentioned under Section 35F of the Central Excise Act, 1944 be waived qua the petitioner herein. (h) Pass any such order and further orders as may be deemed fit and proper in the interest of justice.” 3. This Court (Coram: Hon’ble Ms. Justice Sonia Gokani as her Ladyship was then and Hon’ble Ms. Justice Nisha M. Thakore) passed the following order on 16.12.2021: “1. Draft amendment permitted. To be carried out forthwith. 1.1. We have heard Mr. Bhadrersh Raju, learned advocate. 2. This Court (Coram: Hon’ble Ms. Justice Sonia Gokani as her Ladyship was then and Hon’ble Ms. Justice Nisha M. Thakore) passed the following order on 16.12.2021: “1. Draft amendment permitted. To be carried out forthwith. 1.1. We have heard Mr. Bhadrersh Raju, learned advocate. 2. At the outset, we have made it clear that because of the availability of the alternative efficacious remedy, we shall not enter into the merits of the matter as there is not even averments of the matter being covered by the exceptions for entertaining the writ petitions as provided in case of Whirlpool Corporation v. Registrar of Trade Marks Mumbai, (1998) 8 SCC 1 . 3. Because of the financial difficulties pressed into service, the Court is inclined to consider in wake of the absence of the statutory powers of Customs Excise and Service Tax Appellate Tribunal (CESTAT) of exercising the discretion in making payment of 7.5% of the duty provided statutorily for preferring the appeal against the order-in-original. 3.1. It is thus made clear that on the aspect of merits, this Court has chosen not to entertain this petition. 4. Notice for final disposal, returnable on 23/12/2021. 5. On the returnable date, let instruction be obtained by the learned counsel on the issue raised.” 4. Learned advocate Mr. Raju, in view of the aforesaid order, has restricted his submissions only to the extent of persuading this Court to exercise discretion in favour of the petitioner by granting waiver of 7.50% of the Duty as pre-deposit for preferring an appeal before the Central Excise and Service Tax Appellate Tribunal (CESTAT) challenging the impugned order-in-original. 5. For the above purpose, so as to get waiver of the amount of pre-deposit of Rs. 10 Crore for preferring an appeal before the CESTAT as provided under Section 35F of the Central Excise Act, 1944 (for short “the Act”) submissions were made on two counts, firstly, the financial incapacity of the petitioner to deposit Rs. 10 Crore as pre-deposit and secondly, to make out a prima facie case in favour of the petitioner on merits for waiver of pre-deposit. 6. Before we advert to the submissions in detail, it would be germane to refer to the bare facts emerging from the record. 6.1 The petitioner is the owner of a ‘Gutkha’ (tobacco) manufacturing unit named “M/s. K.K. Gutkha” situated at Village: Kumbhani, District: Chotaudepur. 6. Before we advert to the submissions in detail, it would be germane to refer to the bare facts emerging from the record. 6.1 The petitioner is the owner of a ‘Gutkha’ (tobacco) manufacturing unit named “M/s. K.K. Gutkha” situated at Village: Kumbhani, District: Chotaudepur. It is the case of the respondents that the petitioner was involved in the activity of manufacture of ‘Gutkha’ under various brand names, viz. “KK Gutkha” or “RR Gutkha” and “Goa Gutkha” with the aid of Form, Fill and Seal pouch packing machines (FFS machines), classifiable under “CETH 2403 9990.” The said machines were neither registered with the respondent Department under the Central Excise Rules, 2002 (for short ‘the Rules’) nor were declared as such under the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 (for short, “the Rules 2008”). 6.2 On 15th/16th February, 2017, a search was conducted at the factory premises of M/s. K.K. Gutkha by the Intelligence Unit of the respondents. During the course of search, a Panchnama at the said unit/premises/factory was drawn and it was found that the premises were divided into three parts, the details are as under: (i) First part: In this part three gutkha manufacturing/packing machines were found which were in running condition for manufacturing of R R Brand Gutkha and Goa Brand Gutkha. (ii) Second part: This part of the said premises consisted of four portions. First portion of the second part was the entrance room which was used by employees/worker of the said gutkha manufacturing unit/premises/factory for residence purpose. Second portion of the second part was used for storage of raw materials wherein raw materials and one packing machine in running condition were found. In the third portion of the second part, semi finished goods (40 bories - gunny bags) and raw materials i.e. Tambaku, Supari, Katha, etc. (25 bories) were also found. In the fourth portion of the second part, huge quantity of raw materials viz supari, tambaku, katha, etc. were kept. The officers entered the fourth portion of the second part wherein approximately 120 bories of semi finished goods and raw materials were found. (iii) Third part: This part of the said premises consisted of three portions. In first portion of the third part, seven gutkha packing/manufacturing machines were found. In second portion of the third part, three gutkha packing/manufacturing machines in running condition were found. (iii) Third part: This part of the said premises consisted of three portions. In first portion of the third part, seven gutkha packing/manufacturing machines were found. In second portion of the third part, three gutkha packing/manufacturing machines in running condition were found. In third, portion of the third part, some machinery parts were found. 6.3 During the search, three representative samples of the gutkha pouches were drawn in presence of Panchas and the same were packed and sealed in paper cover. The Preventive Officers, in presence of Panchas, seized the gutkha packing/ manufacturing machines (FFS machines) & one gutkha special packing machine, raw materials, semi-finished goods, finished goods, as specified below, along with some private records consisting of eight notebooks: S. No. Seized items No. of items From specific place 1 Gutkha Manufacturing Machine 03 From the first part of the factory premises. 2 Gutkha Manufacturing Machine 10 From the third part of the factory premises. 3 Gutkha Manufacturing Machine 01 From the second part of the factory premises. 4 OPPO Mobile (Model- A33F) IMEI-863710031542417 01 From labour’s room of second part of the factory premises. 5 INTEX Mobile (Model- Cloud Cube) IMEI 0911497600140400/18 01 From labour’s room of second part of the factory premises. 6 Finished goods 10 bories From outside field which is around 100 metres away from factory premises. 7 Packing material 03 Rolls (01-Goa, 01-KK & 01-RR) From the second part of the factory premises. 6.4 The above seized goods were loaded in two trucks bearing registration number GJO1AU3396 and GJ20U4896 for transporting the same from Chhotaudepur to Vadodara. Further, the Officers, in the presence of Panchas, sealed all the three parts of the said premises with paper seals duly signed by Panchas and officers. 6.5 The statements of the Employees/Workers/Labourers viz. Shri Sushil Kumar, Shri Pradeep Kumar Gautam, Shri Lavlesh Kumar, Shri Ranu Rajput, Shri Amar Rajput, Shri Neeraj Kumar Nishad, Shri Anil Kumar Gautam, Shri Ankit Kumar Gautam were recorded on 15/16.02.2017 at the said Gutkha manufacturing unit/factory. From their statements, it was noticed that there is a common thread coming to light, as under: (i) That gutkha of brands “K.K. Gutkha” or “R..R Gutkha” and “Goa Gutkha” were manufactured by using seventeen pouch packing machines out of which - presently six pouch packing machines were in operation, four pouch packing machines in operating condition were shifted by Sh. Raju Khumbani, Supervisor, 3-4 days earlier from the date of recording of their statements and seven pouch packing machines were now old and were now not in working condition. (ii) That packing of gutkhas was carried out at night at approx. between 10 P.M. to 5 A.M. (iii) That around 85 to 90 bories of finished goods/gutkhas were packed per day and each sack consisted of 52 packets of branded gutkhas and each packet consists of 60 pouches. (iv) That they reported to Shri Raju Khumbani, Supervisor, who also arranged for raw materials viz. Tambaku, Supari and Katha, generator sets for operating the pouch packing machines, their salaries and other logistics supply on daily basis. 6.6 Again, a search was carried out at the factory premises known as M/s. K.K. Gutkha and vide Panchnama dated 21.02.2017, twelve samples of tambaku, supari and katha (four samples each) were drawn and the following items were seized: S. No. Seized Items No. of Items From specific place 1 Raw materials/Semi finished goods, viz. Tambaku, Supari, Katha, etc. 147 From the second portion of the second part of the factory premises. 2 Raw materials/Semi finished goods, viz. Tambaku, Supari, Katha, etc. 65 From the third portion of the second part of the factory premises. 3 Raw materials/Semi finished goods, viz. Tambaku, Supari, Katha, etc. 235 From the fourth portion of the second part of the factory premises. 6.7 The above seized goods/items were transported in three trucks bearing Registration Nos. GJO09Y8783, GJ06Z6493 and GJ22T129 from the said unit/premises to Vadodara and in presence of Panchas, the said factory premises/unit were again sealed. The goods/items seized under Panchnama dated 21.02.2017, were unloaded from the above mentioned three trucks and approx. 98 sacks (bories) of Supari, 49 sacks of Katha, 65 sacks of Tobacco and 235 sacks of mix material appears to be unpacked Gutkha total 447 sacks were unloaded and samples from different sacks (bories) were drawn as detailed in the table below and sealed in different covers, duly signed by Panchas. 98 sacks (bories) of Supari, 49 sacks of Katha, 65 sacks of Tobacco and 235 sacks of mix material appears to be unpacked Gutkha total 447 sacks were unloaded and samples from different sacks (bories) were drawn as detailed in the table below and sealed in different covers, duly signed by Panchas. Further, the seized goods/items were stored and sealed in two go-downs in office premises of Vadodara-I Commissionerate: S. No. Goods appeared to be Sack No. from sample taken No. of sample taken 1 Supari 867 04 sample taken 2 Tobacco 71 04 sample taken 3 Katha 30 04 sample taken 4 Mix material 242, 258, 236, 181, 128, 102, 50, 31, 78, 150 03 sample from each sack 6.8 It appears that after the aforesaid searches, two separate show-cause Notices were issued to the petitioner. The first Notice dated 21.02.2017 related to the goods seized under Panchnama dated 15/16.02.2017 valued at Rs. 6,71,200/- whereas, the second Notice dated 08.08.2017 related to levy of duty and for imposition of penalty under Rule 25 of the Rules and Rule 17 of the Rules of 2008. The petitioner was, thereby, asked to show cause as to why: “(i) Central Excise duty amounting to Rs. 433,11,24,000/- (Rupees Four Hundred Thirty Three Crores Eleven Lakhs Twenty Four Thousands only) from period October 2014 to February 2017, should not be demanded and recovered from him under Section 11 A(4) of the Central Excise Act, 1944. (ii) Interest should not be demanded and recovered from him on the Central Excise Duty demanded at (i) above, under Section 11 AA of the Central Excise Act, 1944. (iii) Penalty should not be imposed on him under Section 11AC of the Central Excise Act, 1944, read with Rule 25 of the Central Excise Rules, 2002, Rule 17 of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008. (iv) Penalty should not be imposed on Shri Altafhusen Mayuddin Khatri under Rule 26 of the Central Excise Rules, 2002.” 6.9 Pursuant to the aforesaid show-cause Notices, an opportunity of hearing was afforded to the petitioner and after considering the statements, affidavits, written submissions, etc. the respondent authority passed order dated 26.10.2018 regarding first show cause notice dated 21.02.2017 which reads thus: “7. the respondent authority passed order dated 26.10.2018 regarding first show cause notice dated 21.02.2017 which reads thus: “7. In view of the above, I pass the following Order: ORDER: (i) I order for the confiscation of the seized goods totally valued at Rs. 6,71,200/- under Rule 25 of the Central Excise Rules, 2002 and Rule 17 of Pan Masala Packing Machines Rules (Capacity Determination and Collection of Duty) 2008 read with Section 11AC of the Central Excise Act, 1944. (a) Out of the above, goods valued at Rs. 5,09,200/- as detailed in Para 6.1 above is ordered for absolute confiscation and the Assistant Commissioner (Prev), Central GST & Central Excise, Vadodara-II is directed to take necessary action for destruction of the same under Rule 29 of the Central Excise Rules, 2002. (b) For the remaining goods viz. Gutkha Manufacturing Machine (13 nos.) valued at Rs. 1,56,000/- Special Packing Machine (1 no. ) valued at Rs. 6000/- I give Shri Altafhusen Mayuddin Khatri option to redeem the confiscated goods on payment of redemption fine of Rs. 50,000/- (Rupees Fifty Thousand only). The option is to be exercised within 30 days of the issue of this order. (ii) I also hold that Shri Altafhusen Mayuddin Khatri is liable to penalty under the provisions of Rule 25 of the Central Excise Rules, 2002 and Rule 17 of Pan Masala Packing Machines Rules (Capacity Determination and Collection of Duty) 2008, which shall not exceed the duty involved in the excisable/notified goods. As the investigation regarding determination of duty is still under progress, as discussed above under Para 6.3, I am constrained by the pending status of the investigation, in not quantifying the penalty amount at this stage.” 6.10 Thereafter, on 25.03.2021, the impugned Order-in-original came to be passed by the respondent authority and final portion of the said order reads as under: “ORDER: (i) I hereby determine the demand of Central Excise duty amounting to Rs. 433,11,24,000/- (Rupees Four Hundred Thirty Three Crores Eleven Lakhs Twenty Four Thousands only), as summarized in ANNEXURE - A & A-1 to the Show Cause Notice, for the period from October-2014 to February- 2017 and order for recovery of the same from Shri Altafhusen Mayuddin Khatri, Owner of Gutkha manufacturing Unit known as M/s. K.K. Gutkha, Kumbhani village, 8 km from Zoj, Nr. Tejgadh Village, District Chhotaudepur, Gujarat- 391165 under Section 11A(10) of Central Excise Act, 1944 which has been kept in force post 01.07.2017 vide Section 142 and 174 of the Central Goods and Services Tax Act, 2017. (ii) I order to recover interest at appropriate rate from Shri Altafhusen Mayuddin Khatri, Owner of Gutkha manufacturing Unit known as M/s. K.K. Gutkha, Kumbhani Village, 8 km from Zoj, Nr. Tejgadh Village, District Chhotaudepur, Gujarat-391165, on Central Excise duty amounting to Rs. 433,11,24,000/-, mentioned at (i) above, under Section 11AA of the Central Excise Act, 1944 which has been kept in force post 01.07.2017 vide Section 142 and 174 of the Central Goods and Services Tax Act, 2017. (iii) I impose penalty of Rs. 433,11,24,000/- (Rupees Four Hundred Thirty Three Crores Eleven Lakhs Twenty Four Thousands only) on Shri Altafhusen Mayuddin Khatri, Owner of Gutkha manufacturing Unit known M/s. K.K. Gutkha, Kumbhani Village, 8 lon from Zoj, Nr. Tejgadh Village, District Chhotaudepur, Gujarat-391165, under Section 11AC of the Central Excise Act, 1944, read with Rule 25 of the Central Excise Rules, 2002, Rule 17 of the Pan Masala Packing Machines (Capacity Petermination and Collection of Duty) Rules, 2008, which has been kept in force post 01.07.2017 vide Section 142 and 174 of the Central Goods and Services Tax Act, 2017, for illicit manufacturing & clandestine removal of branded gutkha (Pan masala containing tobacco) from unregistered premises without payment of Central excise duty and without following the procedure/provisions as per Central Excise Act, 1944. In the event, he is opting to pay duty and interest as confirmed and ordered to be recovered, within thirty days from the date of communication of this order, the amount of penalty liable to be paid by him shall be twenty-five per cent of the duty determined, subject to the condition that such reduced penalty is also paid within the period specified. (iv) I impose penalty of Rs. 50,00,000/- (Rupees Fifty Lakhs only) on Shri Altafhusen Mayuddin Khatri under Rule 26 (1) of the Central Excise Rules, 2002, which has been kept in force post 01.07.2017 vide Section 142 and 174 of the Central Goods and Services Tax Act, 2017, for indulged himself in transporting, removing, depositing, keeping, concealing, selling or purchasing Gutkha, which he knew or had reason to believe, were liable to confiscation under the Central Excise Act, 1944, or the Rules made there under. (v) I impose penalty of Rs. 10,00,000/- (Rupees Ten Lakhs only) on Shri Raju Kumbhani alias Rajubhai Govindbhai Rathva, Supervisor of Gutkha manufacturing Unit known M/s. K.K. Gutkha, Kumbhani village, 8 km from Zoj, Nr. Tejgadh Village, District Chhotaudepur, Gujarat-391165, under Rule 26(1) of the Central Excise Rules, 2002, which has been kept in force post 01.07.2017 vide Section 142 and 174 of the Central Goods and Services Tax Act, 2017, for supervising all manufacturing activity of exciseable goods, i.e. Pan Masala/Gutkha illegally under unregistered factory premises and also transporting, removing and keeping record of the said goods which he knows or has reason to believe to confiscated under the Central Excise Act and rule made there under. (vi) I impose penalty of Rs. 5,00,000/- (Rupees Five Lakhs only) on Shri Bhangrabhai Undalbhai Rathva, Kumbhani Village, 8 K.M. from Zoz, Chhota Udeipur, Landlord of Gutkha manufacturing Unit known M/s. K.K. Gutkha, Kumbhani village, 8 km from Zoj, Nr. Tejgadh Village, District Chhotaudepur, Gujarat-391165, under Rule 26(1) of the Central Excise Rules, 2002, which has been kept in force post 01.07.2017 vide Section 142 and 174 of the Central Goods and Services Tax Act, 2017, for providing his premises on rent without any legal rent agreement where illegal activity of manufacturing of Gutkha/Pan Masala containing tobacco performed specially at night, and the said goods were stored which he knows or has reason to believe, were liable to confiscation under the Central Excise Act and rule made thereunder. (vii) I am-not imposing penalty under Rule 26(1) of the Central Excise Rules, 2002, on Shri Govindbhai Bicchiabhai Rathva, Kumbhani Village, 8 K.M. from Zoz, Chhota Udeipur, Landlord of Gutkha manufacturing Unit known M/s. K.K. Gutkha, Kumbhani Village, 8 km from Zoj, Nr. Tejgadh Village, District Chhotaudepur, Gujarat-391165, as per the Death Certificate dated 12.03.2019 he has expired even though he was liable for imposition of penalty.” 6.11 Being aggrieved by the above orders, the petitioner has preferred the present petition before this Court instead of filing an appeal before the CESTAT. However, as stated hereinabove, this petition is now restricted to the issue as to whether the petitioner is entitled to get waiver/reduction of the amount of pre-deposit for filing an appeal against the impugned orders before the CESTAT. 7. Learned advocate Mr. However, as stated hereinabove, this petition is now restricted to the issue as to whether the petitioner is entitled to get waiver/reduction of the amount of pre-deposit for filing an appeal against the impugned orders before the CESTAT. 7. Learned advocate Mr. Raju, to show the financial incapacity of the petitioner, referred to the Acknowledgments of the Return of Income filed by the petitioner for the Assessment Years 2016-17 to 2020-21 wherein, the total income declared is around Rs. 3 Lakh per year for the said period. It was, therefore, submitted that it is impossible for the petitioner to deposit Rs. 10 Crore which is the minimum amount to be deposited as pre deposit which is a precondition for preferring an appeal before the CESTAT under section 35F of the Central Excise Act, 1944. 8. Learned advocate Mr. Raju submitted that the petitioner has a good prima facie case on three counts. 8.1 Firstly, the petitioner is not liable to pay Duty with effect from 01.04.2014 and that if the allegations made against the petitioner are taken at its face value, then the period of liability would commence from 01.04.2016, viz. the Financial Year in which the search was conducted at the factory premises of the petitioner, in view of the provisions of Rule 17(2) of the Rules, 2008. 8.2 Secondly, the valuation made by the respondent authority is contrary to Rule 12 of the Rules, 2008 inasmuch as under the provisions of sub-clause (ii) of Rule 12 of the Rules of 2008, if the retail sale price of the goods is un-ascertainable, then the same is to be ascertained by conducting enquiry in the retail market where such goods are formally sold. It was submitted that the respondent authorities have relied upon the statements of workers who have stated that a pouch of “Gutkha” was sold in the retail market anywhere between Rs. 2.50 to Rs. 3.00 but no formal inquiry was conducted in the retail market. 8.3 Thirdly, a total number of 17 machines were taken into consideration for computation of the alleged evasion of Duty; however, only 06 (six) machines were in working condition. Therefore, the amount calculated by the respondent authority would come down to anywhere between Rs. 20 to 30 Crore instead of Rs. 433 Crore (rounded off). 9. Learned advocate Mr. 8.3 Thirdly, a total number of 17 machines were taken into consideration for computation of the alleged evasion of Duty; however, only 06 (six) machines were in working condition. Therefore, the amount calculated by the respondent authority would come down to anywhere between Rs. 20 to 30 Crore instead of Rs. 433 Crore (rounded off). 9. Learned advocate Mr. Raju referred to and relied upon the findings given in the impugned Order-in-original dated 25.03.2021 to demonstrate that the petitioner has a very good prima facie case for waiver/reduction of the amount of pre-deposit. It was pointed out that the respondent authority has considered the period of operation for the Duty liability by relying upon the statement of Shri Bhangrabhai Undalbhai Rathva, landlord of the premise where the factory was operating, recorded on 07.03.2017 wherein, he has indicated that the premises were being utilized for manufacture of “Gutkha” for about two years from January 2015. It was submitted that such statement was later retracted and therefore, it ought not to have been relied upon by the adjudicating authority to consider the period of operation from Financial Year 2014-15 in view of Rule 17(2) of the Rules of 2008. 9.1 Learned advocate Mr. Raju further submitted that a liberal interpretation of Rule 17(2) of the Rules of 2008 would suggest that the same would be applicable from the Financial Year in which the search was conducted, or it was found that the goods manufactured were removed by the Unit concerned without following the provisions of the Rules, 2008. 9.2 As regards the number of machines at the factory premises, it was pointed out by learned advocate Mr. Raju that the Panchnama dated 15/16.02.2017 refers to 13 “Gutkha” manufacturing machines; however, out of said 13 machines, only 06 machines were found to be in working condition at the time of search. It was submitted that the adjudicating authority has considered 04 more machines based on the statement dated 27.02.2017 of Shri Rajubhai Govindbhai Rathva, Supervisor of the Unit, wherein, he has confirmed that 04 FFS machines were shifted out of the factory premises. However, the adjudicating authority has noted 17 FFS machines at the factory premises of the petitioner, which is erroneous. It was, therefore, submitted that at the best only 06 machines could have been considered for the purpose of computation of the Duty liability. 9.3 Learned advocate Mr. However, the adjudicating authority has noted 17 FFS machines at the factory premises of the petitioner, which is erroneous. It was, therefore, submitted that at the best only 06 machines could have been considered for the purpose of computation of the Duty liability. 9.3 Learned advocate Mr. Raju further submitted that the maximum retail price for one “Gutkha” pouch was assessed at Rs. 3 by relying upon the statement dated 27.02.2017 of Shri Rajubhai Govindbhai Rathva, Supervisor of the Unit, who has stated that the price of the product was somewhere between Rs. 2.50 to Rs. 3.00 per pouch. By applying Rule 12 of the Rules, 2008, the adjudicating authority assessed the maximum retail price of the product at Rs. 3.00 per pouch, without conducting any inquiry in the retail market. 9.4 It was, therefore, submitted that on the aforesaid three counts, the petitioner has a good prima facie case for waiver of the amount of pre-deposit for filing an appeal before the CESTAT. 10. In support of his submissions, learned advocate Mr. Raju placed reliance on a decision of the Hon’ble Jharkhand High Court in the case Satya Nand Jha R/o Staff Quarters, Kendriya Vidyalaya, PO RIMS, Bariyatu, PS Sadar, District Ranchi, Jharkhand vs. Union of India & others, 2016 SCC Online Jhar 2323. It was also pointed out that against the aforesaid judgment, S.L.P. filed before the Hon’ble Apex Court was also dismissed. By relying upon the aforesaid decision, it was submitted that a writ petition under Article 226 of the Constitution of India would be maintainable in the facts of the present case considering the prima facie case in favour of the petitioner. It was submitted that in extreme cases, the assessees are not remedy less and that a writ petition under Article 226 of the Constitution could be preferred, which was upheld by the Hon’ble Apex Court. While upholding the judgment of the Hon’ble Jharkhand High Court, the Hon’ble Apex Court also upheld the Constitutional validity of the amendment of Sections 35F & 35D of the Act. It was pointed out that before the Hon’ble Jharkhand High Court, while contesting the vires of the provisions of section 35F of the Act, it was the stand of the respondent Department that in extreme cases, it would be open to the assessee to avail the remedy provided under Article 226 of the Constitution of India. It was pointed out that before the Hon’ble Jharkhand High Court, while contesting the vires of the provisions of section 35F of the Act, it was the stand of the respondent Department that in extreme cases, it would be open to the assessee to avail the remedy provided under Article 226 of the Constitution of India. 10.1 Reliance was also placed on the decision of the Hon’ble Delhi High Court in the case of Mohammad Akmam Uddin Ahmed and others vs. Commissioner Appeals, Customs and Central Excise and others, 2023 SCC Online Del 2450 wherein, in the facts of the said case, it was held that there was wrong valuation of the seized goods and therefore, it was necessary to exercise jurisdiction under Article 226 of the Constitution of India for dispensing with the requirement of pre-deposit. Further, given the financial position and wherewithal of the petitioner therein, an opportunity needs to be given to him to contest the valuation so imposed by the respondent, which, otherwise, cannot be contested and accordingly, the pre-deposit of penalty was waived. 10.2 Reliance was also placed on the decision of Hon’ble Allahabad High Court in the case of Shukla and Brothers vs. Customs, Excise & Service Tax Appellate Tribunal, 2015 (1) ADJ 48 wherein, the Court interpreted the phrase “undue hardship” to be not only exclusively related to economic hardship but would also cover a case where the appellant has a strong prima face. 11. On the other hand, learned advocate Mr. Sharma appearing for the respondent authorities submitted that the petitioner has an alternative efficacious remedy of filing an appeal before the CESTAT and only on the ground that the petitioner is not having the financial capacity to make the pre-deposit, he could not approach this Court under Article 226 of the Constitution of India. 11.1 It was submitted that the submissions canvassed on behalf of the petitioner to demonstrate a prima facie case in his favour goes into the merits of the case, which would be considered by the CESTAT in the appeal that may be preferred by the petitioner. It was submitted that only with a view to get waiver of the amount of pre-deposit, the petitioner is canvassing the merits of the case before this Court which would, otherwise, be looked into by the CESTAT in the appeal that may be preferred by the petitioner. It was submitted that only with a view to get waiver of the amount of pre-deposit, the petitioner is canvassing the merits of the case before this Court which would, otherwise, be looked into by the CESTAT in the appeal that may be preferred by the petitioner. It was submitted that any finding given by this Court on merits of prima facie case would severely prejudice either side in hearing of appeal before the CESTAT. 11.2 It was further submitted by learned advocate Mr. Utkarsh Sharma that all the three contentions raised on behalf of the petitioner regarding the period of operation, the number of machines at the factory premises and the issue of retail price, involves interpretation of Rules 12 and 17(2) of the Rules, 2008 respectively as also analysis of the facts and documents on record, which would give rise to disputed questions of fact and, hence, this writ petition may not be entertained. 11.3 It was further submitted that the petitioner has been precluded from making any submissions on merits by order dated 16.12.2021 inasmuch as paragraph-3 of the said order clearly refers to the financial difficulty of the petitioner and not about the merits of the case. 11.4 In support of his submissions, learned advocate Mr. Sharma referred to and relied upon the judgment rendered by the Division Bench of this Court in the case of M/s. Universal Gems Versus Union of India rendered in Special Civil Application No. 16139 of 2023 dated 05.01.2024. It was pointed out that the Hon’ble Apex Court has also dismissed the S.L.P. preferred against the said order passed by this Court. It was pointed out that in the said case, the penalty amount was Rs. 182 Crores and the petitioner therein was required to make deposit of 7.50% of the said amount or a maximum amount of Rs. 10 Crore whichever is less as a pre-deposit for preferring appeal, and, the main contention of the petitioner therein was also financial hardship. It was pointed out that this Court considering the provisions of section 129E of the Customs Act, 1962 which is similar to section 35F of the Act, held that the petitioner therein was required to make payment of the amount of pre-deposit irrespective of any financial hardship in view of the mandatory provisions of the Customs Act. It was, accordingly, prayed to dismiss the present petition. 12. It was, accordingly, prayed to dismiss the present petition. 12. Having heard learned advocates for the respective parties, it would be germane to refer to the provisions of Section 35F of the Central Excise Act, 1944, which provides for the mandatory condition of pre-deposit for challenging any order before the CESTAT. Section 35F of the Act reads thus: “35F. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal: The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal: (i) under sub-section (1) of Section 35, 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 a decision or an order passed by an officer of Central Excise lower in rank than the [Principal Commissioner of Central Excise or Commissioner of Central Excise]. (ii) against the decision or order referred to in clause (a) of sub-section (1) of Section 35-B, 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 sub-section (1) of Section 35-B, unless the appellant has deposited ten 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: Provided that the amount required 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. Explanation - For the purposes of this section “duty demanded” shall include: (i) amount determined under Section 11D. (ii) amount of erroneous CENVAT credit taken. (iii) amount payable under Rule 6 of the CENVAT Credit Rules, 2001 or the CENVAT Credit Rules, 2002 or the CENVAT Credit Rules, 2004.” 13. A bare perusal of the above provision makes it clear that the petitioner is liable to make pre-deposit of Rs. (ii) amount of erroneous CENVAT credit taken. (iii) amount payable under Rule 6 of the CENVAT Credit Rules, 2001 or the CENVAT Credit Rules, 2002 or the CENVAT Credit Rules, 2004.” 13. A bare perusal of the above provision makes it clear that the petitioner is liable to make pre-deposit of Rs. 10 Crores, being the minimum amount for filing an appeal before the CESTAT. This Court is, therefore, not required to examine whether there is any prima facie case in favour of the petitioner in view of the fact that after the insertion of Section 35F, no discretion whatsoever has been left for granting any waiver/reduction in the amount of pre-deposit for preferring an appeal. Therefore, this Court would not be in a position to grant waiver or to reduce the amount of pre-deposit for preferring an appeal on the ground of financial hardship as it would be contrary to the legislative intention. Moreover, this Court vide order dated 16.12.2021 has observed that the petitioner is precluded to make submissions on merits, hence, the submissions made qua prima facie case is required to be considered accordingly. 14. In the case of M/s. Universal Gems (supra), under similar provision of the Customs Act, 1962, this Court held in paragraphs-15 & 16 as under: “15. On perusal of the aforesaid provision, it is clear that it is mandatory for the person being aggrieved by the order passed by the authority to deposit 7.5% or 10%, as the case may be, of the total demand as pre-condition and pre-deposit towards preferring appeal before the appellate authority. This mandatory provisions are required to be adhered to by the petitioner. We are of the opinion that the same cannot be declared to be inapplicable in the facts of the case as it is mandatory requirement for the petitioner to pre-deposit requisite amount so as to enable the appellate authority to consider the appeal on merits. 16. It is made clear that we have not considered the merits of the matter or prima face case of the petitioner in view of the mandatory provision requiring the petitioner to pre-deposit requisite amount as per section 129E of the Customs Act. The petitioner would be entitled to raise all the contentions raised in this petition before the appropriate authority.” 15. The petitioner would be entitled to raise all the contentions raised in this petition before the appropriate authority.” 15. In the opinion of this Court, the petitioner has the alternative efficacious remedy of filing an appeal before the CESTAT and only on the ground that the petitioner is unable to make payment of the amount of pre-deposit, the impugned orders cannot be challenged before this Court in writ jurisdiction. 16. In the case of Assistant Commissioner (CT) LTU, Kakinada and others v. Glaxo Smithkline Consumer Health Care Ltd. (2020) 19 SCC 681 while considering the maintainability of a writ petition where an alternative remedy is available, the Hon’ble Apex Court held that writ jurisdiction can certainly not be exercised when invoked to undermine or defeat the applicable statutory regime. In paragraphs 14 & 15 of the said judgment, it was observed as under: “14. In the backdrop of these facts, the central question is: Whether the High Court ought to have entertained the writ petition filed by the respondent? As regards the power of the High Court to issue directions, orders or writs in exercise of its jurisdiction under Article 226 of the Constitution of India, the same is no more res integra. Even though the High Court can entertain a writ petition against any order or direction passed/action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law [See Baburam Prakash Chandra Maheshwari vs. Antarim Zila Parishad Now Zila Parishad, Muzaffarnagar and also Nivedita Sharma vs. Cellular Operators Association of India & Ors.]. In Thansingh Nathmal & Ors. vs. Superintendent of Taxes, Dhubri & Ors. the Constitution Bench of this Court made it amply clear that although the power of the High Court under Article 226 of the Constitution is very wide, the Court must exercise self imposed restraint and not entertain the writ petition, if an alternative effective remedy is available to the aggrieved person. In paragraph 7, the Court observed thus: (Thansingh Nathmal Case, AIR p. 1423) “7. Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. In paragraph 7, the Court observed thus: (Thansingh Nathmal Case, AIR p. 1423) “7. Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed, the appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under Article 226 and sought to reopen the decision of the Taxing Authorities on question of fact. The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fAct, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.” (Emphasis supplied) 15. We may usefully refer to the exposition of this Court in Titaghur Paper Mills Co. Ltd. & Anr. Vs. State of Orissa & Ors. wherein it is observed that where a right or liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by that statute must only be availed of. In paragraph 11, the Court observed thus: “11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford, (1859) 6 CBNS 336, in the following passage: “There are three classes of cases in which a liability may be established founded upon statute. ....But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it..... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it..... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.” The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant & Co. Ltd. 1935 AC 532 and Secretary of State v. Mask & Co. AIR 1940 PC 105 . It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine.” (Emphasis supplied) In the subsequent decision in Mafatlal Industries Ltd. & Ors. vs. Union of India & Ors. this Court went on to observe that an Act cannot bar and curtail remedy under Article 226 or 32 of the Constitution. The Court, however, added a word of caution and expounded that the constitutional Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise its jurisdiction consistent with the provisions of the enactment. To put it differently, the fact that the High Court has wide jurisdiction under Article 226 of the Constitution, does not mean that it can disregard the substantive provisions of a statute and pass orders which can be settled only through a mechanism prescribed by the statute.” 17. Therefore, the question that would arise before us is whether a prima facie case, as canvassed by learned advocate for the petitioner, can be considered at this stage to grant waiver of the amount of pre-deposit, which is a pre-condition for preferring an appeal before the CESTAT. The petitioner has relied upon the decision of the Hon’ble Jharkhand High Court in Sri. Satya Nand Jha’s case (supra), which has upheld the vires of Section 35F of the Central Excise Act, 1944 by referring to the concession made by the respondent authority that, in extreme cases, the assessee is not remedy-less and that it can prefer a writ petition. Satya Nand Jha’s case (supra), which has upheld the vires of Section 35F of the Central Excise Act, 1944 by referring to the concession made by the respondent authority that, in extreme cases, the assessee is not remedy-less and that it can prefer a writ petition. The Hon’ble Delhi High Court, while considering the aspect of wrong valuation has directed waiver of the amount of penalty in the case of Mohammed Akmam Uddin Ahmed (supra) to grant an opportunity to the assessee to prefer an appeal. Whereas, the Hon’ble Allahabad High Court, in the case of Shukla & Brothers (supra) has observed that the phrase “undue hardship” would also cover a case where the appellant has a strong prima facie case. 18. Considering the aforesaid dictum of law, it appears that the petitioner, therefore, must satisfy this Court that he has a good prima facie case to the effect that he is likely to succeed in the appeal. In order to come to the conclusion that the petitioner would succeed in the appeal, having a good prima facie case, so as to grant waiver of the pre-condition of pre- deposit for filing the appeal, the petitioner is required to disclose a situation where he may be either subjected to gross injustice and/or misfortune or he is liable to excessive demand, contrary to the facts and evidence on record or the impugned orders are perverse, coupled with the fact that the conduct of the petitioner is blotless. 19. Considering the facts of the case and the three tests which may be considered to arrive at a prima facie conclusion as to whether the petitioner has a prima facie case for waiver of the pre-deposit or not, we are required to examine the facts, which are recorded in the order-in-original. 20. A glaring aspect of the case is that the petitioner was manufacturing “Gutkha” in a clandestine manner, without having any Registration. None of the FFS machines were registered under Rules 7 and 8 of the Rules, 2008. Moreover, the case involves disputed questions of facts relating to the period of operation, the number of machines and the retail price of the product vis-a-vis the applicability of Rules 12 and 17(2) of the Rules, 2008. None of the FFS machines were registered under Rules 7 and 8 of the Rules, 2008. Moreover, the case involves disputed questions of facts relating to the period of operation, the number of machines and the retail price of the product vis-a-vis the applicability of Rules 12 and 17(2) of the Rules, 2008. Therefore, we refrain from analysing the submissions made by learned advocate for the petitioner on merits and it would be open to the petitioner to raise all contentions, which are raised in this petition, before the CESTAT. 21. We, therefore, decline to entertain this writ petition under Article 226 of the Constitution of India. It is made clear that we have not considered the merits for examining as to whether the petitioner has a prima facie case or not for waiver of pre deposit amount to prefer an appeal before the CESTAT in view of the mandatory provisions of section 35F of the Central Excise Act, 1944. For the foregoing reasons, the petition, being devoid of merits, is dismissed. Notice is discharged. No order as to cost.