M/S D.K. Associates 202,Bhardwaji, Shahjahanpur Thru. Its Partner Gunjan Gupta vs. Commissioner (Appeals ) Customs, CGST And Central Excise Lko. And 2 Others

Facts

The petitioner, M/s D.K. Associates, filed a writ petition challenging an order dated 30.09.2024. This order dismissed their appeal (Appeal No. 610-ST/2023) on the grounds of non-compliance with the pre-deposit requirement of 7.5% mandated by Section 35-F of the Central Excise Act, as adopted by Section 85 of the Finance Act. The petitioner argued that while Section 35-F requires deposit for appeal entertainment, it does not specify a time limit for such deposit. They also stated that the required amount has since been deposited.

Held

The Court held that the bar for entertaining an appeal under Section 35-F is contingent upon the deposit being made. Since the petitioner has now made the prescribed deposit, the previous order of dismissal on the ground of non-compliance is rendered unsustainable. The Court reasoned that the absence of a specific time limit for the deposit, coupled with the subsequent deposit, cures the defect that led to the dismissal. The ratio decidendi is that if the mandatory pre-deposit for an appeal is made, even after an initial dismissal for non-compliance, the appeal should be heard on merits, provided the deposit is verified. The Court quashed the impugned order dated 30.09.2024 and remanded the matter to the appellate authority to hear the appeal on its merits, subject to verification of the deposit.

Key Issues

1. Whether the dismissal of an appeal for non-compliance with the pre-deposit requirement under Section 35-F of the Central Excise Act, as adopted by Section 85 of the Finance Act, is sustainable when the deposit has been made after the initial dismissal, given no specific time limit is prescribed for the deposit. Petitioner's contention: The petitioner argued that Section 35-F mandates deposit for the appeal to be entertained, but it does not fix a time limit for making this deposit. They further asserted that the required deposit has now been made. Respondent's contention: The judgment does not record any specific arguments made by the respondent. However, the initial dismissal order implies the respondent's position was that the appeal was not maintainable due to the non-deposit at the time of filing or hearing.