R. ARVIND Versus DEPUTY COMMISSIONER OF SERVICE TAX, CHENNAI
Central Excise
2018 (9) TMI 1269 – MADRAS HIGH COURT – 2018 (362) E.L.T. 193 (Mad.) , [2020] 73 G S.T.R. 378 (Mad)
MADRAS HIGH COURT – HC
Dated:- 7-9-2018
W.P.No.15423 of 2018
Central Excise
Mr. K. Ravichandrabaabu J.
For the Petitioner : Mr.Akhil Suresh
For the Respondents : Mrs.Aparna Nandakumar, Senior Panel Counsel
ORDER
The petitioner is aggrieved against the order of the second respondent dated 17.01.2018 in dismissing the appeal on the reason that the required pre-deposit was made belatedly after a period of 7 months from the date of filing of the appeal. In other words, the second respondent dismissed the appeal for non-compliance of predeposit as per Section 35F of the Central Excise Act, 1944.
2. The petitioner is an Assessee and registered with the Service Tax Commissionerate for rendering service tax under the category of renting of immovable property. Pursuant to the issuance of show ca
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for the petitioner submitted that when, admittedly, the appeal was presented in time, the belated payment of pre-deposit cannot be the reason to reject the appeal. In support of his contention, the learned counsel relied on the recent decision of a Division Bench of this Court made in W.A.Nos.342 to 347 of 2017 dated 07.06.2017.
5. On the other hand, the respondents filed a counter affidavit and relied on a Full Bench decision of this Court reported in [1996 (I) CTC 95] in the case of State of Tamil Nadu Vs E.P.Nawab Marakkadai.
6. Heard both sides.
7. There is no dispute to the fact that the petitioner has presented the appeal before the second respondent within time. It is also not in dispute that the appeal was not accompanied with the predeposit and on the other hand, such deposit was made only after a period of 7 months from the date of presentation of the appeal. The issue, thus, arises for consideration in this writ petition as to whether the appeal presented within time can
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ring the course of his arguments, has articulated a concern on behalf of the Revenue, which is, if such an interpretation is given, then, it is likely that the aggrieved party would abuse the process of law.
25.1.While we share the concern of Mr.Chopda, it must be said that our conclusions have to be based on the language used in the Act and not based on the likelihood of abuse of the provisions by the litigants.
25.2.Having said so, in our view, the Authorities below could follow the procedure, which has been adverted to, in the Circular dated 14.10.2014, as indicated in our interim order dated 07.04.2017.
26.The Circular sensu stricto applies only vis-a-vis appeals filed with the Tribunal.
Therefore, according to the procedure prescribed in the said Circular, the appellants are required to be given, at least three opportunities for processing necessary evidence of having made the prescribed mandatory predeposit.
26.1.The Circular, further states that if after three opportun
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.P.Nawab Marakkadai, 1996 (100) STC 1, would come in the way of the appellants.
28.1.In this behalf, Mr.Chopda has laid emphasis on the observations made by the Court in paragraph no.11 of the said judgment. For the sake of convenience, the said observations are extracted hereafter:
“11.Learned counsel for the respondent laid emphasis on the following words in the said judgment: “……….. We are of opinion that by the word 'entertain' here is meant the first occasion on which the court takes up the matter for consideration. It may be at the admission stage or if by the rules of that Tribunal the appeals are automatically admitted, it will be the time of hearing of the appeal.”
But the very next sentence in the said judgment cuts at the very root of the respondent's contention. It is as follows:
“…………But on the first occasion when the court takes up the matter for consideration, satisfactory proof must be presented that the tax was paid within the period o
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the manner prescribed, appeal against such order to the Appellate Assistant Commissioner (having jurisdiction):
Provided that the Appellate Assistant Commissioner may, within a further period of thirty days admit an appeal presented after the expiration of the first mentioned period of thirty days if he is satisfied that the appellant had sufficient cause for not presenting the appeal within the first mentioned period:
Provided further that in the case of an order under section 12, section 12-A, section 14, section 15 or sub-sections (1) and 92) of section 16, no appeal shall be entertained under this sub-section unless it is accompanied by satisfactory proof of the payment of the tax admitted by the appellant to be due or of such instalments thereof as might have become payable, as the case may be.””
30.A perusal of the Section would show that the second proviso, on which, reliance was placed by Mr.Chopda is framed in a manner, which is perceptibly different from the language w
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e Court rendered in M/s.Ranjit Impex Vs. Appellate Deputy Commissioner and Another, (2013) 10 Supreme Court Cases 655. For the sake of convenience, the observations made by the Supreme Court in paragraph nos.2 to 4 and 6 being apposite, are set out hereafter:
“2.The factual narration would exposit that the appellant herein preferred an appeal before the Deputy commissioner I, Commercial Taxes and at the time of presentation, a sum of Rs. 8,52,472 was required to be deposited as per the calculation made under Section 51 of the Tamil Nadu Value Added Tax Act, 2006 (for brevity “the Act”) but as it was not done, the memorandum of appeal was returned to him.
The learned Single Judge disposed of the writ petition directing the assessee to comply with all the requirements as intimated by the appellate authority in the return memo dated 3-1-2011 and on such compliance, the appellate authority was directed to register the appeal and dispose of the same in accordance with the law.
3.In th
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e appeal shall not be considered on merits and eventually has to be dismissed on that ground.
6.Having heard the learned counsel for the assessee and the learned counsel for the Revenue, we are inclined to direct that the appellant shall deposit the amount as required by the Deputy Commissioner I, Commercial Taxes vide order dated 6-1-2011 by 30-9-2013 whereafter the appeal shall be heard and disposed of on merits. As far as the adjustment/refund is concerned, it is open to the appellant to initiate any independent proceeding. The conclusion of the Division Bench with regard to the factum that there has been proper adjustment by the Department in respect of the claim made by the assessee is set aside. However, we may proceed to clarify that we have not expressed any opinion with regard to the claim of the assessee.”
32.Having regard to the aforesaid, we are inclined to hold that the second respondent could not have dismissed the appeals, on the ground that the prescribed mandatory
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