Shri Dibyajit Bora vs. The Union Of INDIA And 4 Ors

Facts

The petitioner, Shri Dibyajit Bora, filed a writ petition challenging an order dated 22.08.2024 by the Commissioner (Appeals), CGST, Central Excise and Customs, Guwahati. The appeal was dismissed for non-fulfillment of the mandatory pre-deposit condition under Section 35F of the Central Excise Act, 1944. The petitioner argued that the pre-deposit could not be made due to the non-availability of a user ID and password. Subsequently, after obtaining the user ID and password, the petitioner made the required 7.5% pre-deposit of the disputed tax amount on 03.09.2024. The revenue, represented by the learned Standing Counsel, GST, fairly submitted that since the amount has been deposited, the matter could be remanded for a decision on merits.

Held

The Court held that the impugned order dated 22.08.2024 passed by the Commissioner (Appeals) was liable to be set aside. The Court noted that the appeal was rejected solely on the ground of non-fulfillment of the mandatory provisions under Section 35F of the Central Excise Act, 1944, without any decision on the merits of the case. It was undisputed that the petitioner had subsequently made the required pre-deposit. The Court reasoned that the failure to deposit was due to the non-issuance of the user ID and password, and once these were obtained, the petitioner promptly made the pre-deposit. Therefore, the Court found it incumbent upon the Commissioner (Appeals) as the first appellate authority to decide the appeal on its merits. The Court set aside the impugned order and remanded the matter back to the competent authority to decide the appeal on merits after giving the petitioner an opportunity of being heard, with the entire exercise to be completed within 60 days.

Key Issues

1. Whether the appeal before the Commissioner (Appeals) ought to have been dismissed solely on the ground of non-fulfillment of the pre-deposit requirement under Section 35F of the Central Excise Act, 1944, when the non-compliance was due to technical reasons (non-availability of user ID and password) and the pre-deposit was subsequently made? Contentions: Petitioner: The appeal should not have been rejected on a procedural technicality without deciding the merits, especially since the pre-deposit was made immediately after rectifying the technical issue. The rejection was based on a failure to fulfill Section 35F of the Central Excise Act, 1944. Respondent (Revenue): The department acknowledged that the pre-deposit has been made and agreed that the matter could be remanded to the department for passing an appropriate order on the appeal filed by the petitioner, to be disposed of on merit.