M/s.Kanakadhara Flat Promoters v. The Commissioner of Central Excise (Appeals)

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 15-2-2012CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENW.P.No.3594 of 2012M/s.Kanakadhara Flat Promoters, No.186/111, Flat NO.S-1, Neeladhari, Lake View Road, West Mambalam, Chennai-600033... Petitioner. VersusThe Commissioner of Central Excise (Appeals),No.26/1, Mahatma Gandhi Road, Nungambakkam, Chennai-600034... Respondent.PRAYER: Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorari to call for the records of the respondent in his proceedings in impugned interim orderNo.19/2012 (MST), dated 24.1.2012 under Section 35F Central ExciseAct in A.No.447 of 2011 (MST) and quash the same. For Petitioner: Mr.K.VaitheeswaranFor Respondent: Mr.K.Ravindranath (CGSC)ORDERThis writ petition has been filed against the proceedings of the respondent, dated 24.1.2012, made under Section 35F of the CentralExcise Act, 1944, directing the petitioner to make a pre-deposit of the entire service tax amounting to Rs.18,68,852/-, on or before15.2.2012.

It had been stated, in the impugned proceedings of the respondent, that the appeal filed by the petitioner would be rejected, without further notice, on the failure of the petitioner to comply with the said condition.

The learned counsel appearing on behalf of the petitioner had submitted that the petitioner had raised the issue of financial hardship before the respondent. However, the respondent had not considered the same, properly, before passing the impugned order, dated 24.1.2012. https://hcservices.ecourts.gov.in/hcservices/

The learned counsel appearing on behalf of the petitioner had submitted that the petitioner would make a pre-deposit of 50% of the amount of service tax said to be payable by the petitioner, within aperiod of four weeks from today. On such deposit being made the respondent shall be directed to hear the appeal and dispose of the same, on merits and in accordance with law.

Per contra, the learned counsel appearing on behalf of the respondent had submitted that the petitioner had not sufficiently substantiated its claim of financial hardship, with material evidence. Therefore, the respondent had directed the petitioner to make a pre-deposit of the entire sales tax due from the petitioner, as a pre-condition to hear the appeal filed by the petitioner.

In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal of the records available, this Court is of the view that it would be appropriate to direct the petitioner to make a pre-deposit of 50% of the sales tax said to be payable by the petitioner, within a period of four weeks from today. On such deposit being made the respondentshall hear the appeal, in A.No.447/2011(MST) and dispose of the same, on merits and in accordance with law, as expeditiously as possible. The Writ Petition is ordered accordingly. No costs. Consequently, connected miscellaneous petition is closed. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarcshToThe Commissioner of Central Excise (Appeals),No.26/1, Mahatma Gandhi Road, Nungambakkam, Chennai-600034.+ cc to Mr.K. Vaitheeswaran, Sr.10139+ 1 cc to Mr.K. Ravindranath, SR.10502W.P.No.3594 of 2012PPA(CO)Eu 1.03.12