Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH WEDNESDAY, THE 4TH DAY OF OCTOBER 2023 / 12TH ASWINA, 1945 WP(C) NO. 32153 OF 2023 PETITIONER:
A.S. ANIYAN PILLAI, AGED 63 YEARS S/O N.SHANMUGHAN PILLAI, RESIDING AT KOCHUTHEKKETHIL HOUSE, KARTHIKANILAYAM, KUTTOOR P.O., THIRUVALLA, PATHANAMTHITTA DISTRICT PIN-689 106.
BY ADVS.
K.N.RADHAKRISHNAN(THIRUVALLA) ABHILASH.B RESPONDENTS:
1 THE COMMISSIONER, OFFICE OF THE COMMISSIONER(APPEALS), CENTRAL TAX,CENTAL EXCISE AND CUSTOMS,CENTRAL REVENUE BUILDING, IS PRESS ROAD, KOCHI 682 018.
2 DEPUTY COMMISSIONER, OFFICE OF THE DEPUTY COMMISSIONER, CENTRAL GST AND CENTRAL EXCISE, PATHANAMTHITTA DIVISION, THEZETHEKKETHIL TOWER, ST. PETER'S JUNCTION, PATHANAMTHITTA, PIN – 695 002.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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DINESH KUMAR SINGH, J.
--------------------------------------------------------- W.P.(C). No. 32153 of 2023
--------------------------------------------------------- Dated this the 4th day of October, 2023.
JUDGMENT The present writ petition has been filed under Article 226 of the Constitution of India seeking the following reliefs:
1) Call for the records relating to Exhibit P-3 and quash the same by the issue of a writ of certiorari or such other appropriate writ or direction or Order.
2) Issue a writ of mandamus or any other writ, orders or directions directing the first respondent to give an opportunity to remit/deposit the amount, which mandates by statutes.
3) Stay all further proceedings pursuant to Exhibit P1 and revenue recovery proceedings, till final disposal of the present writ petition.
2. The petitioner, a contractor engaged in providing works contract services to the Public Works Department, Government of Kerala. He was issued with Exhibit P1 order dated 28.12.2021 directing him to pay an amount of Rs.12,47,756/- as service tax.
Aggrieved by the same, the petitioner has preferred Exhibit P2 appeal before the first respondent, who as per Exhibit P3 order dated 23.08.2023, dismissed the appeal on the ground that the petitioner has not remitted 7.5% of the duty as mandated by 35F of the Central Excise Act, 1944, as made applicable to Finance Act, 1994, by virtue of
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Section 83 of the Finance Act, 1994. Hence this writ petition.
3. Heard both sides. The learned counsel for the petitioner submits that Section 85 of the Finance Act dealing with ‘appeals to the Commissioner of Central Excise’, does not insist for a pre-condition that certain percentage of the assessed amount shall be remitted along with the appeal. He further submits that the petitioner was not given an opportunity for hearing and that the authority ought to have return the appeal, if it lacks any mandatory provision.
4. The learned counsel for the petitioner further submits that a learned single Judge of this Court, as per the judgment dated 11.01.2021 in W.P.(C) No. 705 of 2021, permitted the petitioner therein to deposit the amount as envisaged by Section 35F of the Finance Act, 1994 towards pre-deposit for entertaining his statutory appeal.
5. Considering the fact that the appeal is a statutory appeal and the same is only rejected because of non-deposit of the amount required for entertaining the appeal, I am of the considered opinion that one more opportunity needs to be granted to the petitioner for depositing the amount as required by Section 35F of the Central Excise Act, 1944 for entertaining the statutory appeal on merits.
6. In that view of the matter, the present writ petition is
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disposed of as follows:
1) The impugned Exhibit P3 order of rejection of the appeal is quashed.
2) The petitioner is permitted to deposit the amount as envisaged by Section 35F of the Central Excise Act, 1944 towards pre- deposit for entertaining his statutory appeal.
3) If the petitioner deposits the said amount within a period of fifteen days from today, the appellate authority shall consider and decide the appeal afresh in accordance with law.
Writ petition stands finally disposed of.
sd/- DINESH KUMAR SINGH, JUDGE.
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APPENDIX OF WP(C) 32153/2023 PETITIONER’S EXHIBITS:
Exhibit P1 THE TRUE COPY OF ORDER DATED 28.12.2021 ISSUED BY THE SECOND RESPONDENT Exhibit P2 THE TRUE COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT Exhibit P3 THE COPY OF ORDER PASSED BY THE FIRST RESPONDENT DATED 23.08.2023 RESPONDENTS’ EXHIBITS: NIL True Copy PS To Judge.
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