2024 (6) TMI 188

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....consent of both sides, the appeal itself is taken up for hearing. 2. We find that the learned Commissioner (Appeals) has not decided the appeal on merits but has rejected the appeal before him for failure to make mandatory pre-deposit in terms of Section 35F of the Central Excise Act, 1944, as made applicable to service tax cases vide Section 83 of Finance Act, 1994. We further find that the Appellant deposited Rs.4,30,100/- and submitted copy of DRC-03 bearing ARN AD090522034173D dated 27.05.2022. 3. Further learned Commissioner (Appeals) in the impugned Order-in-Appeal at paragraph 4.3 and 4.3.1 has recorded as under:- "4.3 I further find that as per the provisions of Section 35F of the Central Excise Act, 1944, as made applicable to ....

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....F of the Central Excise Act, 1944 and Section 83 of Finance Act, 1994 read with section 35F of the CEA. There exists a dedicated CBIC-GST Integrated portal, https://cbic-gst.gov.in {Board's Circular No.1070/3/2019-CX dated 24th June, 2019 refers in this regard}, which should only be utilized for making deposits under the Central Act, 1944 and the Finance Act, 1994. 4.3.1 From the cited text of the said Instruction dated 28.10.2022 it is explicitly and unambiguously clear that the same is essentially clarificatory in nature and, as is legally established, the same is retrospective in nature as it only clarifies the existing provisions of the statute. I find that the retrospective nature of clarificatory provisions has been established....

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....(66) G.S.T.L. 257 (Bom.) held thus :- "6. We find that this is a matter that requires to be resolved by the Central Board of Indirect Taxes and Customs (CBI & C). From the affidavit filed by Mr. Lal, it appears that many appellants/assessees were paying the pre-deposit under Section 35F of the Central Excise Act, 1944 through service tax challans, whereas few appellants/assessees were using DRC-03 mode under CGST Act, 2017. This, in our view, could be for various reasons. It appears that this problem has been taken up by the CBI & C with the Principal Chief Commissioner, Mumbai CGST & CE Zone by a letter dated 3rd June 2022. The subject itself states "Non-acceptance of pre-deposit paid through Form GST DRC-03 for appeal under Service Tax ....

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....and certainly requires the CBI & C to step in and issue suitable clarifications/guidelines/ answers to the FAQs. We would expect CBI & C to take immediate action since the issue has been escalated by Mr. Lal over eight months ago. 9. In the circumstances, we hereby quash and set aside the impugned orders dated 13th April, 2022 and direct respondent No.3 to hear petitioner de novo and pass such orders as he deems fit on merits in accordance with law." 5. We find that the learned Commissioner (Appeals) could have granted the refund of amount of pre-deposit wrongly made by DRC-03 to the Appellant and given an opportunity to deposit the said amount on its Integrated Portal instead of dismissing the appeal in limine. Because dismissing the a....