The Delhi High Court has recently dismissed a plea to waive pre-deposit for an appeal against a limitation order that was barred by limitation.
The petitioner approached the Delhi High Court, aggrieved by an order dated 04.05.2023, whereby its appeal against an order-in-original dated 20.12.2022 was not entertained for want of necessary pre-deposit.
By the said order-in-original, the Adjudicating Authority had confirmed the demand of service tax of ₹17,259, ₹63,184/- & ₹1,21,731/- including Education Cess, Higher Secondary Education Cess, Swachh Bharat Cess And Krishi Kalyan Cess for the Financial Years 2014-15 to 2016-17, and October 2014 to March, 2015, under the proviso to Section 73(1) of the Finance Act, 1994.
The Adjudicating Authority had also confirmed the demand of ₹1,21,731/- for the service tax not paid or wrongly availed. In addition, the Adjudicating Authority also imposed a penalty of ₹2,02,174/- under Section 78 of the Finance Act, 1994 and ₹l,00,000/- under Section 78A of the Finance Act, 1994.
The petitioner had filed the writ petition under Article 226 of the Constitution of India, captioned M/s Classic Decorators v. Assistant Commissioner, CGST Division & Ors., 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. The Delhi High Court had also observed that, prima facie, the petitioner’s contention that the order-in-original is barred by limitation was merited.
The Counsel for the petitioner, Mukesh Gupta & S. B. Gandhi submitted that in view of the observations made by this Court in the order dated 31.01.2023, the petitioner’s appeal ought to have been entertained by the Appellate Authority without insisting on pre-deposit.
Finding no merit in the aforesaid contention, the High Court Bench observed that, “The amount of pre-deposit required is 7.5% of the total demand, which is not a large sum.”
It was also noted that, “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.”
The Division Bench of Justice Vibhu Bakhru and Justice Amit Mahajan thus held, “We find no ground to interfere with the impugned order dated 04.05.2022. We clarify that if the petitioner makes the pre-deposit within a period of two weeks from today, the Appellate Authority shall consider the petitioner’s appeal on merits.”
Subscribe Taxscan Premium to view the JudgmentSupport our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates
