M/S Netsity Systems Pvt Ltd vs Commissioner (Appeals) And ...
2023 Latest Caselaw 15523 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:107356
 
Court No. - 6
 

 
Case :- WRIT TAX No. - 471 of 2023
 

 
Petitioner :- M/S Netsity Systems Pvt Ltd
 
Respondent :- Commissioner (Appeals) And Another
 
Counsel for Petitioner :- Vishwjit,Niraj Kumar Singh
 
Counsel for Respondent :- Dhananjay Awasthi
 

 
Hon'ble Piyush Agrawal,J.

Heard learned counsel for the petitioner and Sri Dhananjay Awasthi, learned counsel for the respondents.

Present writ petition has been filed challenging the order dated 11.1.2023 whereby the appeal preferred by the petitioner has been rejected on the ground that the mandatory pre deposit has not been made in terms of section 35 F of the Central Excise Act, 1944.

Learned counsel for the petitioner submits that the appeal was preferred on 11.11.2022 against the Order-in-Original No. 81/AC/Div-V/Noida/2021022 dated 29.12.2021 without accompanying the pre deposit but the same was made sufficient on 27.12.2022. He further submits that the requirement of pre deposit was made sufficient after a period of 16 days from the date of filing of appeal. He further submits that before entertaining the appeal by the court the condition of pre deposit was made sufficient. He relied upon a judgment of the Madras High Court in W.P. No. 15423 of 2018 (Mr. R. Arvind. vs. The Deputy Commissioner of Service Tax and another) dated 7.9.2018 and prays that the writ petition be allowed.

Per contra Sri Awasthi, learned counsel for the respondents submits that the impugned order has been passed in accordance with law as section 35 F of the Central Excise Act itself provides deposit of certain percentage of duty demanded against penalty imposed before filing of the appeal. He further submits that once section itself provides pre condition for deposit of certain amount before filing of appeal the order could not be said to be illegal. He prays that the petition be dismissed.

After hearing the learned counsel for the parties and perusing the records it transpires that admittedly the appeal was filed on 11.11.2022 but was not accompanied with pre deposit and such deposit was made sufficient after 16 days of filing the appeal. Admittedly the appeal was dismissed by the impugned order only on the ground that the appeal was not accompanied with pre deposit in terms of section 35 F of the Central Excise Act, 1944. From a perusal of the impugned order it does not mention a word that the pre deposit was made beyond the period of limitation. Admittedly the pre deposit has been made before entertaining the appeal by the court below.

In view of the observations made in the judgment of the Mr. R.Arvind (supra) the writ petition is allowed and the impugned order dated 11.1.2023 is hereby set aside. The matter is remitted back before the court below for deciding the appeal afresh.

Order Date :- 17.5.2023

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