2024 (10) TMI 563 - HC - Central Excise

Appeal Reinstated After Non-Compliance Set Aside; Petitioner Granted 3 Months for 7.5% Pre-Deposit Under Excise Act.

Sagar Arvind Shah Versus Deputy Commissioner of CGST & CX, Division IV, Navi Mumbai, Commissioner of CGST & CEX Appeals Mumbai, Union of India.

The Bombay HC set aside the impugned order dismissing the Petitioner's Appeal for non-compliance with the pre-deposit requirement under Section 35(F) of ... Maintainability of appeal - mandatory pre-deposit not deposited - Petitioner’s Appeal dismissed on the ground of failure to deposit 7.5% of the demanded tax amount, which is the requirement under Section 35 (F) of the Central Excise Act, 1944 has applicable to the Finance Act, 1994 - HELD THAT:- In the peculiar facts of the present case, some indulgence is due to the Petitioner, who now says that he would arrange to deposit 7.5% of the tax amount demanded within some reasonable period. Considering the peculiar facts, the petitioner can be granted an additional opportunity without waiving the pre-deposit requirement. The impugned order dated 30 April 2024 made by the Commissioner (Appeals) is set aside - the Appeal instituted by the Petition is restored on the Commissioner (Appeals) file for reconsideration. Issues: Challenge to impugned order for failure to deposit tax amount; Jurisdiction of show cause notice; Requirement of pre-deposit under Section 35(F) of Central Excise Act; Petitioner's financial hardship; Waiver of pre-deposit; Compliance with pre-deposit condition.The judgment by the High Court of Bombay involved a challenge to an impugned order dated 30 April 2024, where the Commissioner (Appeals) dismissed the Petitioner's Appeal due to failure to deposit 7.5% of the demanded tax amount as required under Section 35(F) of the Central Excise Act, 1944. The Petitioner argued that the show cause notice issued was without jurisdiction as it was beyond the prescribed period of limitation, rendering subsequent orders nullities. The Petitioner contended that the pre-deposit condition was arbitrary and violated Article 14 of the Constitution, especially considering the financial constraints, with an income of Rs. 10,000 per month. The Petitioner sought a waiver of the pre-deposit, citing decisions from other High Courts allowing such waivers in cases of strong prima facie evidence and grave hardships.The Respondents, however, argued that the pre-deposit was mandatory for hearing the Appeal, citing legal precedents to support their stance. The Court considered the arguments and observed that challenging the show cause notice was not within the scope of the current Petition. It noted that the Commissioner (Appeals) rightfully dismissed the Appeal for non-compliance with the pre-deposit condition, referencing a previous case that established the mandatory nature of the pre-deposit requirement. Despite this, the Court acknowledged the Petitioner's financial difficulties, especially considering the history of the business and the current financial state. The Court decided to grant the Petitioner an additional opportunity to comply with the pre-deposit requirement without waiving it entirely.In light of the peculiar facts of the case, the Court set aside the impugned order and reinstated the Appeal for reconsideration by the Commissioner (Appeals). However, the Court stipulated that the Appeal would not be decided on merits until the Petitioner deposited 7.5% of the demanded tax amount within three months. Failure to comply within the specified period would result in dismissal of the Appeal. The Court clarified that the decision was specific to the circumstances of the case and not to be treated as a precedent. The Rule was disposed of without any cost order, and all parties were directed to act upon an authenticated copy of the order.