THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM v. THE UNION OF INDIA AND 5 ORS

Advocate for the Petitioner : MS. M BHATTACHARJEE, MS. P DASGUPTA Advocate for the Respondent : DY.S.G.I., SC, OIL,SC, GST BEFORE THE HON’BLE MR JUSTICE ARUN DEV CHOUDHURY

O R D E R

26.03.2025

None appears for the petitioner on call. Mr. SC Keyal, learned standing counsel for the GST is present. Also present Mr. L Sangtam, learned counsel on behalf of Mr. A Sarma, learned counsel for the respondent Nos. 5 and 6.

The petitioner, an assessee under the Finance Act, 1994, was served with a Demand-cum-Show Cause Notice dated 29.09.2020 asking him to show cause as to why service tax amounting to Rs. 1,46,41,544/- on the services rendered during the period from Financial Year : 2014 – 2015 (October, 2014 to March, 2015) to Financial Year : 2017 – 2018 should not be demanded and recovered from him under the proviso to sub-section (1) of Section 73 of the Finance Act, 1994, as amended, plus Page No.# 3/4 interest and penalty, etc. under the other provisions of the Finance Act, 1994. In response to the said Demand-cum-Show Cause Notice, the petitioner as the assessee submitted its Reply dated 25.01.2021. It is stated by the Adjudicating Authority that the said Reply was received at his office on 12.02.2021. The Order-in-Original was passed by the Adjudicating Authority on 31.05.2022. As an appeal against the said Order-in-Original lied before the Commissioner, Customs & Central Excise Appeal, CGST within a period of 60 days from the date of communication of the Order-in- Original, the petitioner preferred an appeal before the Appellate Authority. The Appellate Authority passed the Order-in-Appeal on 17.05.2023 recording that the petitioner-appellant did not make payment of mandatory pre-deposit @ 7.5% of the amount in dispute while filing the appeal under Section 35 of the Central Excise Act,

1944. Stating that such deposit is a mandatory pre-condition for filing an appeal, an appeal was not entertained for any decision on merits. Aggrieved by the said Order-in- Appeal dated 17.05.2023, the petitioner has preferred the instant writ petition under Article 226 of the Constitution of India, which has been registered on 05.08.2023.

In the aforesaid backdrop, this court framed two issues, firstly, whether a writ petition can be entertained when the petitioner did not prefer statutory appeal before the Customs, Excise and Service Tax Appellate Tribunal, and secondly, if the writ petition is entertained, whether this Court can consider any issue on merits when the appeal was not entertained as the petitioner appellant did not fulfil the condition of mandatory pre-deposit at the time of filing an appeal.

Mr. Keyal, learned counsel representing the respondent submits that the Bombay High Court in Kantilal Bhaguji Mohite vs. Commissioner, Central Excise and Service Tax-Pune III held that Section 35-F of the Central Excise Act, 1944 are mandatory. It is also submitted by Mr. Keyal that such decision was challenged before the Hon’ble Apex Court and the Hon’ble Apex Court has also upheld the judgment of the Bombay High Court holding that pre-deposit mandated under statute for filing appeals cannot be waived in exercise of writ jurisdiction. Accordingly, this writ petition is liable to be dismissed.

Be that as it may, as none appears for the petitioner on call, without going into the merit of the claim, let this writ petition be dismissed for non-prosecution. Page No.# 4/4 JUDGE Comparing Assistant