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CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

NEW DELHI.

PRINCIPAL BENCH,

COURT NO. IV

SERVICE TAX APPEAL NO. 55052 OF 2023

[Arising out of the Order-in-Appeal No. DDN-EXCUS-000-APPL-154-2022-23

dated 16/03/2023 passed by Commissioner, Central Goods and Service Tax

(Appeals), Dehradun – 248 001.]

M/s Vidyut Self Help Society, ……Appellant

Sadasiya, Khatima, (262 308),

Uttarakhand.

Versus

Commissioner, ….Respondent

Central Goods and Service Tax, Dehradun

E Block, Nehru Colony, Haridwar Road,

Dehradun – 248 001. Uttarakhand.

APPEARANCE:

Ms. Mallika Joshi and Ms. Nishtha Mittal, Advocates for the

appellant.

Shri Anil Kumar, Authorized Representative for the Department

CORAM:

HON’BLE DR. MS. RACHNA GUPTA, MEMBER (JUDICIAL)

HON’BLE SHRI P.V. SUBBA RAO, MEMBER (TECHNICAL)

FINAL ORDER NO. 50961/2026

DATE OF HEARING/DECISION : 12.05.2026.

RACHNA GUPTA

The present appeal is filed to assail the order-in-appeal No.

54/2022-23 dated 16.03.2023 vide which the Commissioner

(Appeals) has rejected the appeal before him, without going into

the merits of the case but due to the failure of appellant to make

the pre-deposit in terms of section 35F of Central Excise Act,

1994 read with instruction dated 28.10.2022 issued by the CBEC

2 ST/55052 OF 2023

vide letter No. 240137/14/2022-Service Tax Section dated 28^th

October, 2022. It is said in the instruction that payment of pre-

deposits through DRC-03 is not valid mode of payment under

section 35F of the Finance Act. Being aggrieved the appellant is

before this Tribunal.

2. We have heard both the parties.

3. Learned counsel for the appellant has submitted that the

CBEC Circular has wrongly been applied retrospectively. Order

under challenge is therefore prayed to be set aside. Appeal to be

disposed of accordingly. Learned departmental representative on

the other hand has reiterated the findings of the impugned order.

4. It is observed that the instruction dated 28.10.2022 which

has instructed that payments of pre-deposit through DRC-03

amounts to violation of section 35F of the Act is pursuant to the

decision of High Court, Mumbai in the case of Sodexo India

Services Private Limited versus Union of India¹. The said

decision along with the Circular of 2019 and the instructions of

2022 have clearly been dealt with by High Court of Delhi in Army

Welfare Housing Organisation versus Union of India

wherein it has been held as follows :-

“24. On a query to Mr. Shubham Tyagi, learned Counsel for the

Respondent, it is submitted that there is no specific decision that has

been taken by the CBICin this regard. After Sodexo India Services

Private Limited (supra), it is submitted that instructions in Circular

1. 2022 (66) G.S.T.L. 257 (Bom.)

2. (2026) 38 Centax 171 (Del.)

3 ST/55052 OF 2023

No. CBIC-240137/14/2022-SERVICE TAX SECTION-CBIC dated 28^th

October, 2022 have been issued by the CBIC to the following effect:

“In view of the above, it is clarified that payments through

DRC-03 under CGST regime is not a valid mode of payment

for making pre-deposits under Section 35F of the Central

Excise Act, 1944 and Section 83 of Finance Act, 1994, read

with Section 35F of the CEA. There exists a dedicated CBIC-

GST Integrated portal, https:/cbic-gst.gov.in {Board’s

Circular No. 1070/3/2019-CX, dated 24^th June, 2019 refers

in this regard}, which should only be utilized for making pre-

deposit under the Central Excise Act, 1944 and the Finance

Act, 1994.”

25. These instructions, in effect, hold that filing of DRC-03 under

the CGST regime is not a valid mode of payment for making a pre-

deposit under Section 35(F) of the Excise Act, 1944, read with

Section 83 of the Finance Act, 1994. These instructions were issued

on 28^th October, 2022 and in M/s Saphire Cables & Services Pvt. Ltd.

& Ors., the appeals were filed prior to these instructions. Hence,

according to Mr. Tyagi the same is distinguishable.

26. The short question for consideration is whether CENVAT credit

can now be utilised for the purpose of making pre-deposit or not. In

the opinion of this Court, CENVAT cr