2024 (8) TMI 1257 - HC - GST

Jharkhand HC revives dismissed appeal after finding no intent to avoid Section 35F pre-deposit requirement

M/s. Poonam Construction & Co., Versus Principal Commissioner, Central Goods and Service Tax & Central Excise, Ranchi, Commissioner (Appeals), Central Goods and Service Tax & Central Excise, Ranchi, Deputy Commissioner, Central Goods and Service Tax & Central Excise, Hazaribagh, Assistant Commissioner, Central Goods and Service Tax & Central Excise, Hazaribagh, Axis Bank Ltd.

The Jharkhand HC allowed a petition seeking revival of an appeal that was dismissed for non-payment of mandatory pre-deposit under Section 35F of the ... Order dismissed on failure to make pre-deposit - Request for revival of appeal on depositing the pre-deposit amount - HELD THAT:- As would appear from the order passed by the appellate authority wherein the appeal has been dismissed due to non-payment of the mandatory pre-deposit amount as required under Section 35F of the Central Excise Act, 1944 - The learned counsel appearing for the petitioner, based upon the said reason of dismissal of appeal, has relied upon the order passed by the Coordinate Bench of this Court in M/s. Amar Enterprises [2023 (3) TMI 295 - JHARKHAND HIGH COURT] where it was held that 'It does not appear that there was intent on the part of the petitioner to avoid payment of pre-deposit @7.5% as provided under the amended section 35F of Central Excise Act, 1944. Respondents have also adverted to the facility provided under the RBI Instruction for making such pre-deposit by unregistered dealer / registered non-assessees.' This Court is of the view that the appellate order passed by the authority requires interference - the order dated 14.06.2024 passed by the Commissioner (Appeals), CGST & Central Excise, Ranchi (Respondent No.2) in the Order in Appeal is hereby quashed and set aside by reviving the said appeal, subject to deposit of the pre-deposit amount as required under Section 35F of the Central Excise Act, 1944, which as per the undertaking furnished by the petitioner, is to be done within two weeks from today. Appeal allowed. Issues:1. Challenge to Order in Original and Order in Appeal for financial years 2015-16 and 2016-17.2. Quashing of garnishee notice dated 15.04.2024.3. Dismissal of appeal due to non-payment of mandatory pre-deposit under Section 35F of the Central Excise Act, 1944.4. Request for revival of appeal on depositing the pre-deposit amount.5. Applicability of a judgment by the Coordinate Bench of the Court in a similar case.6. Involvement of the respondent Bank due to the garnishee notice.Analysis:The writ petition challenges the Order in Original and Order in Appeal for the financial years 2015-16 and 2016-17, seeking to quash them along with the garnishee notice dated 15.04.2024. The petitioner's appeal was dismissed for failure to make the mandatory pre-deposit required under Section 35F of the Central Excise Act, 1944. Despite the dismissal, the petitioner requested to provide details for making the pre-deposit, which was allegedly not considered, leading to the filing of the writ petition.The petitioner relied on a judgment by the Coordinate Bench of the Court in a similar case, where the petitioner was allowed to deposit the pre-deposit amount and have the appeal heard on merit. The petitioner, in the present case, also expressed willingness to make the pre-deposit but claimed that the authority did not positively consider the request, prompting the writ petition. The Revenue did not dispute the applicability of the previous judgment in the current case.Upon considering the facts and the previous judgment, the Court found the appellate order dismissing the appeal for non-payment of the pre-deposit amount requires interference. Consequently, the Court quashed and set aside the Order in Appeal, reviving the appeal subject to the deposit of the pre-deposit amount within two weeks as per the petitioner's undertaking. The Court directed the appeal to be decided on its merit, clarifying that the decision is to be made in accordance with the law based on the factual aspect of the matter. The respondent Bank, being a formal party due to the garnishee notice, was also involved in the proceedings.