IMPORTANT POINT
The court affirmed that a pre-deposit is mandatory for maintaining an appeal under Section 35F of the Central Excise Act, and jurisdictional challenges do not exempt compliance with statutory requirements.

JUDGMENT :

Raja Basu Chowdhury, J:

1. The present writ petition has been filed, inter alia, challenging the order dated 5th January, 2024, passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as the “Tribunal”), whereby the Tribunal having granted the petitioner no.1, 8 weeks time to make the pre-deposit for maintaining the appeal, had made it clear if such condition of pre-deposit is not fulfilled, no further opportunity would be provided to the petitioner no.1.

2. Brief facts of the case are noted below.

3. The petitioner no.1 claims to be a company and is engaged in the business of providing work contract services to the State Government, local authorities or Government Undertakings by way of construction of roads, bridges etc. In the Financial Year 2015-16, the petitioner no.1, in usual course, having participated against the tenders issued was awarded work orders for construction of bailey bridges and accordingly contract agreements were executed on 24th March, 2015 and 19th January, 2016. It is the petitioners’ contention that since the bailey bridges are used by the general public and are intended to be used as general road transportation, the construction of these bridges is not liable to service tax.

4. On or about 23rd April, 2021, a demand-cum-show cause notice was issued by the respondent no.2, thereby calling upon the petitioner no.1 to show cause within 30 days from the receipt of the notice as to why;

(i) Service Tax amounting to Rs.2,17,50,747/-(Two Crore Seventeen Lakh Fifty Thousand Seven Hundred Forty Seven) only for the period 2015-16 should not be demanded and recovered from them under proviso to Section 73(1) of the Finance Act, 1994 read with Section 174(2) of the CGST Act, 2017;

(ii) Applicable Interest on the amount of unpaid Service Tax should not be demanded and recovered from them under Section 75 of the Finance Act, 1994;

(iii) Penalty should not be imposed under Section 77 of the Finance Act, 1994 for failure to furnish information and produce documents requisitioned by the department;

(iv) Penalty should not be imposed upon them under Section 78 of the Finance Act, 1994 for failure to pay the Service Tax by the due dates; and for suppression of vital facts from the department with intent to evade payment of Service Tax by various acts of omission and commission as explained in the preceding paragraphs;

(v) Penalty should not be imposed under Section 70 and Section 77(2) of the Finance Act, 1994 for non-submission of return under provision of Section 70 of the Finance Act, 1994 read with Rule 7C of Service Tax Rules, 1994.

5. Although the petitioner no.1 had duly responded to the show cause, such proceeding was disposed of by passing the order in original by the respondent no.2 on 14th March, 2022, whereby, the demand raised in the show cause was confirmed in terms of Section 73(2) of the Central Excise Act, 1944 (hereinafter referred to as the “said Act”), along with interest and penalty.

6. Being aggrieved, the petitioner no.1 had filed a writ petition before the Hon’ble High Court at Guwahati, which was registered as WP(C) No.3967 of 2022. By an order dated 22nd June, 2023, the Hon’ble High Court at Guwahati was, inter alia, pleased to dismiss the said petition with liberty to file statutory appeal. The petitioner no.1 has since filed a statutory appeal before the Tribunal.

7. By an order dated 5th January, 2024, the Tribunal by condoning the delay in preferring the appeal had set forth the conditions for maintaining such appeal.

8. Ms. Roy Chowdhury, would submit that it is within the competence of this Court to grant exemption in a fit case. In support of her contention she has placed reliance on the judgments delivered by the Hon’ble High Court of Delhi at New Delhi, in the case of Shubh Impex v. Union of India & Ors., reported in 2018 SCC OnLine Del 8793 and in the case of Pioneer Corporation v. Union of India, reported in 2016 SCC OnLine Del 6758.

9. By placing befor