Back
2022 Supreme(Online)(KER) 47416
HIGH COURT OF KERALA
GOPINATH P, J
KUMARANALLOOR SERVICE CO-OPERATIVE BANK LTD.NO.3898 – Appellant
Versus
THE COMMISSIONER OF CENTRAL EXCISE – Respondent
WP(C)/35175/2022
ARJUN S.
Mandatory pre-deposit under the Central Excise Act must be fulfilled to maintain an appeal, and waiver of this requirement is not permissible.
Headnote:
Mandatory - Appeal Dismissal - Central Excise Act - Section 35F - The court emphasized that the mandatory pre-deposit for appeals is non-negotiable, reaffirming that an appeal is not maintainable without fulfilling this condition, thereby leading to the dismissal of the petitioner's appeal.
Fact of the Case:
The petitioner challenged the dismissal of their appeal due to non-payment of mandatory pre-deposit under Section 35F of the Central Excise Act. The petitioner argued that a waiver for this pre-deposit was sought, which was overlooked, resulting in an unjust dismissal.
Finding of the Court:
The court found that the appeal was rightly dismissed as the mandatory pre-deposit was not made, reinforcing that waiver requests do not negate the requirement for the pre-deposit under the law. The court quashed the earlier order, allowing reconsideration upon compliance.
Issues: Whether the dismissal of the appeal for non-payment of the mandatory pre-deposit was justifiable in light of the petitioner's claim for waiver.
Ratio Decidendi: The court concluded that the statutory requirement of a pre-deposit under the Central Excise Act is strict and must be adhered to for an appeal to be maintainable, emphasizing the non-waivable nature of this pre-deposit.
Final Decision: The court quashed the dismissal order and remitted the appeal for fresh consideration contingent upon the petitioner making the mandatory pre-deposit.
JUDGMENT
Dated this the 7th day of November, 2022 The petitioner has approached this Court being aggrieved by Ext.P6 order dismissing an appeal filed by the petitioner under the provisions of Section 35F of the Central Excise Act (as made applicable to the provisions of the Finance Act, 1994) on the ground that the appeal was not maintainable as the petitioner had not paid the mandatory pre- deposit in order to maintain the appeal. It is the case of the learned counsel appearing for the petitioner that the petitioner had sought for waiver of pre-deposit and since no decision was taken on the same, the act of the Appellate Authority in dismissing the appeal cannot be countenanced in law.
2. The learned Senior Standing Counsel appearing for the respondents' department points out and rightly so that there is no question of waiver of mandatory pre-deposit. It is submitted that it is settled law that unless such mandatory pre-deposit is made, the appeal itself is not maintainable. He, therefore, states that there is absolutely nothing wrong in Ext.P6 order and the petitioner is not entitled to any relief under Article 226 of the Constitution of India.
3. Faced with this situation, the learned counsel appearing for the petitioner states that the petitioner was under the belief that he could ask for a waiver of pre-deposit and therefore he had filed the application for waiver. It is submitted that the petitioner may be permitted to pay the pre-deposit and have the Ext.P2 appeal adjudicated on merits.
Having heard the learned counsel appearing for the petitioner and the learned Senior Standing Counsel appearing for the respondent department, this Writ Petition will stand disposed of quashing Ext.P6 order and remitting Ext.P2 appeal for fresh consideration of the Appellate Authority on condition that the petitioner makes the mandatory pre-deposit as required under law within a period of two weeks from today. If the petitioner does not make the pre-deposit within the time granted above, the appeal of the petitioner will stand dismissed without any further order.
Sd/-
GOPINATH P.
JUDGE
APPENDIX OF WP(C) 35175/2022 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE ORDERS-IN ORIGINAL NO.145/2016 S.T AND 146/2016 ST DATED 27.06.2016 ISSUED BY THE
2ND RESPONDENT Exhibit P2 A TRUE COPY OF THE APPEAL WITH A PETITION FOR WAIVER OF PRE-DEPOSIT DATED 24.09.2016 BEFORE THE 1ST RESPONDENT Exhibit P3 A TRUE COPY OF THE LETTER ISSUED BY THE OFFICE OF THE 1ST RESPONDENT DTD 19.12.2016 Exhibit P4 A TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT NO.ST/APPEAL/2016-17 DTD
12.01.2017 Exhibit P5 A TRUE COPY OF THE LETTER ISSUED BY THE OFFICE OF THE DEPUTY COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE- KOTTAYAM DIVISION NO.680/22 DTD 20.09.2022 Exhibit P6 A TRUE COPY OF THE ORDER IN A.NO.159 &
160/ST/CHN/2016-17 ISSUED BY THE 1ST RESPONDENT DTD
07.04.2021 TRUE COPY P.A.TO JUDGE
