DIGANTA DUARAH v. The Union of India & Ors.

Advocate for the Petitioner : MR. A K GUPTA, MR. R K MAHANTA,MR. R S MISHRA Advocate for the Respondent : DY.S.G.I., SC, GST Page No.# 2/4 HON’BLE MR. JUSTICE ARUN DEV CHOUDHURY BEFORE ORDER 16-05-2025

#1. Heard Mr. R.S.Mishra, learned counsel for the petitioner and Mr. S.C.Keyal, learned Standing counsel, GST for the respondent Nos. 2 to 5.

#2. It is the case of the petitioner that he has been carrying out his business under the name & style, “M/s Diganta Duarah”. He is the sole proprietor and is an Assesee registered under the provisions of Finance Act, 1994 (since omitted by the Central Goods and Services Tax (CGST) Act, 2017) bearing registration No. ACHPD3271DST001. It is further case of the petitioner that the petitioner was assessed to tax under Assam Value Added Tax for the Financial Year 2016-2017. Aggrieved by such assessment, the petitioner challenged the Order-in-Original dated 19.12.2023, before the Commissioner (Appeals), CGST, Central Excise & Customs. In terms of Section 79(5) of the Assam Value Added Tax Act, 2003, an appeal can be entertained by the appellate authority only on pre-deposit amount as prescribed and after providing proof of payment thereof.

#3. As the petitioner failed to submit the necessary pre-deposit as envisaged under Section 35F of the Central Excise Act, 1944, the Appeal preferred by the petitioner as an appellant was dismissed by an order dated 21.08.2024.

#4. Being aggrieved, by filing this writ petition, the petitioner has approached this Court.

#5. Mr. Mishra, learned counsel for the petitioner, relying on the decision made in the case of JSB Cement LLP Vs. State of Assam and Ors reported in (2019) SCC Online Gau 5983 and the decision of the Hon’ble Apex Court made in the case of Page No.# 3/4 Tecnimont Pvt. Ltd. Vs State of Punjab reported in (2021) 12 SCC 477 argues that applying the equitable principle, a direction can be issued to the appellate authority to hear the appeal of the petitioner.

#6. Per contra, Mr. Keyal, learned Standing counsel, GST, submits that the appellate authorities had not committed any illegality and therefore, the decision may not be interfered by this Court in exercise of its power under Article 226 of the Constitution of India. Relying on the decision of Tecnimont Private Ltd (supra), Mr. Keyal, also submits that the Hon’ble Apex Court in un-ambiguity held that the appellate authority shall not have power to waive such a statutory prescription of pre-deposit and therefore, no illegality has been committed by the authorities and that being the position, this Court may not like to exercise of its certiorari jurisdiction in interfering with such a decision.

#7. I have given due consideration to the arguments advanced by the learned counsels for the parties.

#8. The Hon’ble Apex Court in the case of Tecnimont (supra) without any doubt, has laid down the proposition that the appellate authority shall not be within its jurisdiction to give a concession dehors the statutory prescription of deposit as a condition precedent for entertaining an appeal. However, the Hon’ble Apex Court in its earlier decisions in State of AP Vs P Laxmi Devi reported in (2008) 4 SCC 720 and Har Devi Asnani Vs State of Rajasthan reported in (2011) 14 SCC 160, held that in genuine cases of hardship, the recourse would still be open to the person concerned to approach superior Court, therefore, it would be completely different thing to say that the appellate authority itself can grant such a relief for the reason that such exercise would make provision itself unworkable and render the statutory intendment nugatory. Such determination was considered by a Division Bench in JSB Cement LLP (supra) and held that when in case of requirement of pre-deposit is found to be arbitrary or exorbitant, only then, the writ Court can interfere and accordingly, applying the principle of equity, the Division Bench extended time of deposit of 20% of the statutory deposit under Section 79(5) of the Act, 2003 and directed the respondents to hear the appeal on merit. Page No.# 4/4

#9. In the considered opinion of this Court, the principle of equity as emphasized in the judgments of the Hon’ble Apex Court and the Division Bench, shall also be applicable in the given facts of the present case. This Court though cannot find fault with the appellate authority in non-entertaining the appeal due to non-compliance of Section 79(5), however, as the petitioner is ready to pre-deposit the required amount and in exercise of power under Article 226 of the Constitution of India, this Court is inclined to grant the benefit of hearing to the petitioner in the given fact of the case.

#10. Accordingly, the present writ petition stands allowed by setting aside and quashing the impugned order dated 21.08.2024, subject to the statutory deposit. However, it is made clear that this Court has not entered into the merit of such determination, rather the same is set aside only for a fresh hearing. The petitioner shall appear before the appellate authority within a period of 30 (thirty) days from the date of this order along with a copy of this order passed today and on such appearance and furnishing of statutory deposit, the appellate authority shall afresh take the matter for hearing on a date, which is convenient to the appellate authority. It is also made clear that if the petitioner does not appear on the said date and does not make pre-deposit, the order that has been set aside, shall revive.

#11. With the aforesaid, the instant writ petition stands disposed of. JUDGE Comparing Assistant