2022 (8) TMI 706 - HC - Service Tax

Maintainability of petition - compliance with the requirement of pre-deposit or not - Violation of principles of natural justice - Appellate Authority has ignored to afford opportunity of hearing before rejecting the appeal filed under Section 83 of the Chapter-V of the Finance Act, 1994 read with Section 35F of the Central Excise Act, 1944 - HELD THAT - This Court, without entering into merits of the matter, feels it just and proper to relegate the Petitioner to approach the Appellate Authority namely Commissioner (Appeals), Central GST and Customs and submit before him the necessary documents showing compliance of statutory requirement including pre-deposit being made as required under Section 83 of the Chapter-V of the Finance Act, 1994 read with Section 35F of the Central Excise Act, 1944. Petition disposed off.

Summary

Issues:
Challenging the propriety of Order-in-Appeal for non-compliance with principles of natural justice and pre-deposit requirements under Section 35F of the Central Excise Act.

Analysis:
The petitioner, an advocate, challenged the Order-in-Appeal before the High Court, alleging a violation of principles of natural justice by the Appellate Authority for not affording an opportunity of hearing before rejecting the appeal filed under Section 83 of the Finance Act, 1994 read with Section 35F of the Central Excise Act, 1944. The petitioner contended that despite depositing the required amount for pre-deposit for appeal, the Appellate Authority erroneously rejected the appeal on the grounds that the pre-deposit was not made "for filing the appeal." The petitioner's counsel highlighted Section 35F of the Central Excise Act, emphasizing that the pre-deposit is a mandatory requirement to entertain any appeal. The Appellate Authority's reasoning for rejecting the appeal was deemed mistaken and lacking legal basis by the petitioner.

The Senior Standing Counsel for the Central Goods & Service Tax and Customs did not dispute the legal position regarding the Appellate Authority's reasoning. The High Court, refraining from delving into the merits of the case, directed the petitioner to approach the Appellate Authority, the Commissioner (Appeals), Central GST and Customs, to provide necessary documents demonstrating compliance with the statutory requirements, including the pre-deposit mandated under Section 35F of the Central Excise Act. The First Appellate Authority was instructed to verify the compliance and, upon satisfaction, restore the appeal to file and proceed with the matter on its merits in accordance with the law. The writ petition was disposed of with this observation and direction.