2018 (9) TMI 1269 – MADRAS HIGH COURT – 2018 (362) E.L.T. 193 (Mad.) – Non-Compliance of Pre-deposit – time limitation – appeal dismissed 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 – Section 35F of the Central Excise Act, 1944.
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Whether the appeal presented within time can be rejected on the ground that pre-deposit was made belatedly?
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Held that:- The issue has already been considered by the Division Bench of this Court in MR. RAMKI VERSUS THE ADDITIONAL COMMISSIONER OF CUSTOMS (PAU) , THE COMMISSIONER OF CUSTOMS (APPEALS I) [2017 (7) TMI 832 – MADRAS HIGH COURT], wherein the Division Bench after taking note of various decisions, including the Full Bench decision relied on by the respondents, held that The proviso to Section 128 (1) of the 1962 Act, empowers the second respondent to adjudicate upon an appeal filed beyond the period of 60 days, but, within a further period of 30 days, provide
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ed:- 7-9-2018 – 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 cause notice, an order in original dated 25.11.2016 was passed against the petitioner, wherein and whereby, the Adjudicating Authority confirmed the service tax demand and interest apart from imposing penalty. 3. Challenging the said order, the petitioner preferred
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f 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 be rejected on the ground that pre-deposit was made belatedly, has already been considered by the Division Bench of this Court in W.A.Nos.342 to 347 of 2017 dated 07.06.2017, wherein the Division Bench after taking note of various decisions, including the Full Bench d
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at 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 opportunities, the necessary evidence is not filed, then, the appeal should be numbered and placed, for a decision before the concerned Presiding Officer. 27.In our view, the same procedure could be applied even vis-a-vis appeals preferred before the second respondent i.e., The Commissione
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d 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 of limitation available for the appeal. 29.In our view, the said observations of the Full Bench have to be read in the context of the provision, which the Court was called upon to interpret in the said case. 29.1.In that case the Court was called upon to interpret the provisions of Section 31 (1) of the T
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d 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 which obtains in Section 129 E of the 1962 Act. 30.1.The word 'entertain' is followed by the expression unless it is accompanied by satisfactory proof of payment of tax admitted . In other words, the second proviso to Section 31(1) of the TNGST Act, prohibited the concerned Authority from entertaining an appeal, unle
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appeal before the Deputy commissioner I, Commercial Taxes and at the time of presentation, a sum of ₹ 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 the writ appeal, it was contended that the appellate authority could not have returned the memorandum of appeal on the ground that Section 51 uses the term entertain and second, the amount that was due to the appellant from the Department was to be adjusted for the purpose of deposit as envisaged under Section 51 of the Act. The Division Be
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0-9-2013 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 predeposit was made, beyond the condonable period. 8. Since the Division Bench has also taken into consideration of the Full Bench decision relied on by the respondents and has come to the above conclusion that the Appellate Authority could not have dismissed the appeal on the ground that the prescribed mandatory appeal was made beyond the condonabl
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