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2022 (4) TMI 1254 - HC - Service TaxPrayer for interim protection till the restoration application is not taken up by the learned CESTAT, Eastern Zone, Kolkata for disposal - recovery of the dues under Section 87 of the Finance Act 1994 read with Section 174 and Section 79 of the CGST Act 2017 - HELD THAT - Since the restoration petition is pending before the learned CESTAT, Eastern Zone, Kolkata and petitioner had got an interim protection on pre-deposit earlier, we are inclined to grant interim protection to the petitioner from any coercive steps on the part of the respondents till 23.05.2022 when the matter is posted before the learned CESTAT, Eastern Zone, Kolkata. Needless to say, learned CESTAT would endeavour to take up the case on 23.05.2022 or any date prior to or thereafter on prior notice to the petitioner. However, interim order shall cease to operate on 23.05.2022. Let the order be communicated to the learned CESTAT, Eastern Zone, Kolkata through FAX and email, apart from the usual course. Petitioner shall also serve the copy of the instant order upon learned Deputy / Assistant Registrar, CESTAT, Kolkata within a period of 1 weeks. Writ petition disposed off.
Issues:
Interim protection for restoration application pending before CESTAT, Eastern Zone, Kolkata. Analysis: The writ petition before the High Court of Jharkhand concerned a prayer for interim protection until the restoration application, ST/MA(ROA)/75051/2017, pending before the CESTAT, Eastern Zone, Kolkata, is disposed of. The petitioner's appeal against Order-in-Original No. 16/ST/Commr/2006 was dismissed for default in 2016. The petitioner had obtained interim protection earlier by depositing 10% of the CENVAT Credit. The restoration application had not been disposed of, and a notice for recovery of service tax and penalty was issued. The petitioner sought protection from coercive action until the restoration petition was decided. The petitioner's counsel argued that failure to make the required deposit within 7 days or obtain a stay order would lead to the department initiating recovery action under relevant sections of the Finance Act and CGST Act. The respondent's counsel acknowledged that the restoration application was pending, with the next hearing scheduled for May 23, 2022. The single-member bench was functioning regularly, but the Division Bench was operating intermittently. The respondent highlighted the petitioner's inaction since the appeal dismissal in 2016. After considering the arguments, the High Court granted interim protection to the petitioner until May 23, 2022, the date of the next hearing before the CESTAT, Eastern Zone, Kolkata. The court directed the CESTAT to attempt to hear the case on that date or any earlier or subsequent date after providing notice to the petitioner. The interim order would cease to operate on May 23, 2022. The court emphasized that it did not delve into the merits of the case while disposing of the writ petition. The court instructed the petitioner to communicate the order to the concerned authorities within a week.
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