2022 (9) TMI 10 - HC - Service Tax

Maintainability of appeal - appeal rejected on the ground that the petitioner has not made the mandatory pre-deposit under Section 35F of the Central Excise Act, 1944 as made applicable to the Finance Act, 1994 - an opportunity sought for making such deposit which would enable the First Appellate Authority to consider the matter on merits - HELD THAT - The appeal will stand restored to the file of the 2nd respondent on condition that the petitioner makes the pre-deposit in terms of Section 35F of the Central Excise Act 1944 as made applicable to the Finance Act, 1994, within a period of one month from today. Petition allowed.

Summary

Issues: Appeal rejection due to failure to make mandatory pre-deposit under Section 35F of the Central Excise Act, 1944.

Analysis:
1. The petitioner approached the court aggrieved by the rejection of their appeal by the First Appellate Authority (2nd respondent) for not making the mandatory pre-deposit under Section 35F of the Central Excise Act, 1944 as applied to the Finance Act, 1994.

2. The petitioner's counsel argued that the delay in pursuing the appeal, filed in 2015, was due to the petitioner becoming non-operational with no business activities in Kerala since 2016. Reference was made to a previous judgment where an opportunity was granted for making a pre-deposit to enable the First Appellate Authority to consider the matter on merits.

3. The Standing Counsel for the respondents acknowledged the possibility of granting the petitioner an opportunity to make the pre-deposit and have the appeal decided on its merits based on the precedent set by a previous judgment.

4. After hearing both sides, the court allowed the writ petition, setting aside the order rejecting the appeal. The appeal was restored to the 2nd respondent on the condition that the petitioner makes the pre-deposit within one month as required by Section 35F of the Central Excise Act, 1944 as applicable to the Finance Act, 1994.

This comprehensive analysis outlines the issues involved in the judgment, the arguments presented by both parties, and the court's decision in granting relief to the petitioner while imposing the condition of making the pre-deposit within a specified timeframe.