2024 (8) TMI 719

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....unal (hereinafter referred to as the "Tribunal"), whereby the Tribunal having granted the petitioner no.1, 8 weeks time to make the pre-deposit for maintaining the appeal, had made it clear if such condition of pre-deposit is not fulfilled, no further opportunity would be provided to the petitioner no.1. 2. Brief facts of the case are noted below. 3. The petitioner no.1 claims to be a company and is engaged in the business of providing work contract services to the State Government, local authorities or Government Undertakings by way of construction of roads, bridges etc. In the Financial Year 2015-16, the petitioner no.1, in usual course, having participated against the tenders issued was awarded work orders for construction of baile....

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....agraphs; (v) Penalty should not be imposed under Section 70 and Section 77(2) of the Finance Act, 1994 for non-submission of return under provision of Section 70 of the Finance Act, 1994 read with Rule 7C of Service Tax Rules, 1994. 5. Although the petitioner no.1 had duly responded to the show cause, such proceeding was disposed of by passing the order in original by the respondent no.2 on 14th March, 2022, whereby, the demand raised in the show cause was confirmed in terms of Section 73(2) of the Central Excise Act, 1944 (hereinafter referred to as the "said Act"), along with interest and penalty. 6. Being aggrieved, the petitioner no.1 had filed a writ petition before the Hon'ble High Court at Guwahati, which was registere....

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....rated in paragraph 15 of the said judgment that if the cause of action arises in part within the territories in relation to which the High Court exercises jurisdiction then notwithstanding that the seat of the Government or authority being outside the territories of the High Court, the same would not stand in the way of the High Court exercising jurisdiction. 11. She insists that the order passed by the Tribunal is amenable to the jurisdiction of this Court as the same does not finally dispose of the case, nor can the order which is impugned can be said to be an adjudicating order and thus not appealable. 12. According to her, admittedly, in this case, the petitioner no.1 is facing serious financial constrains. By placing before this ....

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....cent of the duty in case where duty, or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the Commissioner of Central Excise. As such in absence of the mandatory pre-deposit, the appeal itself cannot be entertained. In support of his aforesaid contention, he has placed reliance on the case of Diamond Entertainment Techno. Ltd. v. Commr. of CGST, Dehradun, reported in 2019 (368) E.L.T. 579 (Del.). He further submits that in light of the above, the judgements delivered in the case of Shubh Impex (supra) and the case of Pioneer Corporation (supra) are no longer good law. 15. Again by drawing attention of this Court t....

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....r directing payment of mandatory pre-deposit does not constitute an order within the meaning of Section 35G of the said Act, for maintaining an appeal before a High Court, I, however, notice that the Hon'ble Supreme Court in the case of Raj Kumar Shivhare (supra) while considering the scope of the provisions of Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 and Foreign Exchange Management Act, 1999 (hereinafter referred to as "FEMA"), in relation to an order passed in connection with an application for dispensation of pre-deposit of penalty and the right to prefer an appeal to the High Court in terms of Section 35 thereof, in paragraph 24 of such judgment was, inter alia, pleased to observe by taking note of t....

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.... lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law." 23. Having regard to the above, it cannot be said that the order passed by the Tribunal on 5th January, 2024 does not qualify as an order for preferring an appeal before the High Court, simply because the same does not seek to adjudicate the rights of the parties. It is a different question whether the High Court would admit the same having rega....