Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH THURSDAY, THE 12TH DAY OF OCTOBER 2023 / 20TH ASWINA, 1945 WP(C) NO. 33391 OF 2023 PETITIONER:
KAVIYOOR SERVICE CO OPERATIVE BANK LTD NO. A 707 KAVIYOOR P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT , REPRESENTED BY ITS SECRETARY, PIN - 689582 BY ADV K.N.RADHAKRISHNAN(THIRUVALLA) RESPONDENTS:
1 COMMISSIONER OF CENTRAL TAX CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS, OFFICE OF THE COMMISSIONER OF (APPEALS), CENTRAL TAX, CENTRAL EXCISE AND CUSTOMS, CENTRAL REVENUE BUILDING, I.S.
PRESS ROAD, KOCHI, PIN - 682018 2 DEPUTY COMMISSIONER OFFICE OF THE DEPUTY COMMISSIONER, CENTRAL GST AND CENTRAL EXCISE, PATHANAMTHITTA DIVISION, THAZHETHEKKATHIL TOWER, ST. PETER'S JUNCTION, PATHANAMTHITTA, PIN – 689645 ADV.SREELAL N WARRIER - SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC No.33391 of 2023 2 JUDGMENT Dated this the 12th day of October, 2023 1.
The present writ petition has been filed under Article 226 of the Constitution of India by the petitioner, a Co-operative Bank situated at Kaviyoor.
An order in original No.04/2021-22/ST-DC dated 28.10.2021 is passed by the Assessing Authority.
The demand of service tax of Rs.2,27,085/-, Swatch Bharat Cess of Rs.8,110/- and Krishi Kalyan Cess of Rs.8,110/- totaling to Rs.2,43,306/- was confirmed under Section 73(2) of the Finance Act, 1994 (‘the Act’ for short). The penalty of the same amount i.e, Rs.2,43,306/- being 100% of the service tax was also confirmed under Section 78 of the Act. It was also provided that as per the proviso to Section 78, if the assessee makes the payment of service tax and interest and penalty within a period of thirty days from the date of receipt of the order, the penalty payable under Section 78 would be 25%
WPC No.33391 of 2023 3 instead of 100%. The penalty of Rs.2,500/- was also imposed under Section 77(1) of the Act and Rs.2,500/- under Section 77(2) of the Act.
2.
Aggrieved by the said order in original, the petitioner filed Ext.P2 appeal before the Commissioner of Central Excise (Appeals), Ernakulam, under Section 85 of the Act. However, the petitioner did not make mandatory deposit of the 7.5% of the tax assessed and therefore, the appel came to be dismissed by Ext.P3 order dated 23.08.2023 impugned in the present writ petition.
The Appellate Authority has held that unless the condition of pre-deposit under Section 35F is not complied with, the appeal is not maintainable regardless of its merits.
3.
The learned counsel for the petitioner submits that the petitioner will comply with the mandatory requirements and deposit of 7.5% of the tax within a period of ten days from today. If the
WPC No.33391 of 2023 4 petitioner deposits 7.5% of the demand in terms of Section 35F of the Central Excise Act, the appeal shall be heard and decided on merit. If there is any delay in filing the appeal, the application for condonation of delay also be considered in accordance with law.
4..
With the aforesaid liberty, the writ petition stands finally disposed of.
Sd/- DINESH KUMAR SINGH JUDGE AP
WPC No.33391 of 2023 5 APPENDIX OF WP(C) 33391/2023 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF ORDER DATED 28.10.2021 ISSUED BY THE SECOND RESPONDENT Exhibit P2 THE TRUE COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DATED 08.10.2022 Exhibit P3 THE COPY OF ORDER PASSED BY THE FIRST RESPONDENT DATED 23.08.2023