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2023 (6) TMI 230 - HC - GSTMaintainability of petition - availability of alternative remedy of appeal - requirement of compliance with the pre-deposit - time limitation - HELD THAT - The petitioner had filed the writ petition under Article 226 of the Constitution of India, in M/s Classic Decorators v. Assistant Commissioner, CGST Division Ors. 2023 (2) TMI 235 - DELHI HIGH COURT , impugning the order in original passed by the Adjudicating Authority. The said petition was disposed of on 31.01.2023 on the ground that the petitioner has an equally efficacious alternate remedy. This Court had also observed that, prima facie, the petitioner s contention that the order-in-original is barred by limitation is merited. The amount of pre-deposit required is 7.5% of the total demand, which is not a large sum. There is no averment that the requirement of pre-deposit has rendered the appellate remedy illusory or that the petitioner is anyway impeded from availing the same. There are no ground to interfere with the impugned order - petition disposed off.
Issues involved:
The issues involved in the judgment are the cancellation of an order passed by respondent no.1 and the direction to decide the appeal on merit without insisting for pre-deposit as per section 35F of the Central Excise Act, 1944. Cancellation of Order: The petitioner filed a petition seeking to cancel the order dated 04-05-2023 passed by respondent no.1, which did not entertain the appeal against an order-in-original dated 20.12.2022 due to lack of necessary pre-deposit. The order-in-original confirmed the demand of service tax for various financial years and imposed penalties under Section 78 and 78A of the Finance Act, 1994. A previous writ petition was disposed of on the ground of having an alternate remedy, with observations that the order-in-original might be barred by limitation. Pre-Deposit Requirement: The petitioner's appeal was not entertained by the Appellate Authority without insisting on pre-deposit, despite the observations made in the previous court order. The court found no merit in the contention that the pre-deposit amount of 7.5% of the total demand was significant, stating that there was no impediment for the petitioner to make the pre-deposit and avail the appellate remedy. The court clarified that if the petitioner makes the pre-deposit within two weeks, the Appellate Authority will consider the appeal on merits, ultimately disposing of the petition in line with these observations.
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