Jagdamba Power And Alloys Limited vs. Commissioner Of Central Excise (Now Principal Commissioner Of CGST And Central Excise)

Facts

The applicant, Jagdamba Power And Alloys Limited, filed MCC No. 408 of 2020 seeking restoration of TAX Case No. 26/2018, which was dismissed as withdrawn on December 20, 2019. The applicant had moved a court slip to withdraw the appeal to avail the benefit of an Amnesty Scheme, a condition of which was that no proceedings should be pending before any court. The respondent is the Commissioner of Central Excise (now Principal Commissioner of CGST and Central Excise). The applicant argues that since the appeal was withdrawn solely to avail the Amnesty Scheme and was not decided on merits, it should be restored, citing the Supreme Court's decision in P. M. Paul Vs. State of Tax Officers. The respondent opposes restoration, contending that Section 35-G of the Act of 1944 makes the Code of Civil Procedure applicable, and an appeal withdrawn without liberty cannot be restored repeatedly.

Held

The Court held that the MCC is allowed and TAX Case No. 26/2018 should be restored to its original number. The Court reasoned that the applicant had withdrawn the statutory appeal (TAX Case No. 26/2018) with the specific intent to avail the benefit of the Amnesty Scheme, as evidenced by the court slip filed. The appeal was not decided on merits. Applying the principles laid down by the Supreme Court in P. M. Paul Vs. State of Tax Officers, where it was held that if an appeal is withdrawn as a pre-condition for availing an Amnesty Scheme and the benefit is not obtained, the assessee is entitled to have the appeal restored to be heard on merits. The Court found the present case to be similar, as the statutory appeal was not heard on merits and was withdrawn solely to comply with the Amnesty Scheme's condition. Therefore, the right to challenge on merit should not be foreclosed. The operative direction is to restore TAX Case No. 26/2018 to its original number.

Key Issues

1. Whether TAX Case No. 26/2018, withdrawn by the applicant to avail the benefit of an Amnesty Scheme, can be restored to its original number, considering the provisions of Section 35-G of the Central Excise Act, 1944 and the applicability of the Code of Civil Procedure. Contentions: Petitioner/Appellant: Argues that the appeal was withdrawn solely as a pre-condition to avail the Amnesty Scheme and was not decided on merits. Relies on the Supreme Court's decision in P. M. Paul Vs. State of Tax Officers, which held that the right to challenge on merit cannot be foreclosed if an appeal is withdrawn for an Amnesty Scheme and the benefit is not availed. The applicant contends that since they were unsuccessful in availing the Amnesty Scheme, the appeal should be restored to be heard on merits. Respondent: Vehemently opposes the restoration. Argues that Section 35-G of the Act of 1944 makes the Code of Civil Procedure applicable. Contends that an appeal withdrawn without any liberty granted cannot be restored, especially not time and again.