Bombay High Court
Sagar Arvind Shah vs Deputy Commissioner Of Cgst And Cx ... on 9 October, 2024
Author: M.S.Sonak
Bench: M.S.Sonak
2024:BHC-OS:15880-DB Sagar Arvind Shah v Deputy Commissioner of
CGST & CX Division IV Navi Mumbai
15-oswpl-28753-2024(F).docx
Amol
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 28753 OF 2024
Sagar Arvind Shah,
104, 'O' Wing Vardhman Nagar,
Dr. RP Road, Mulund West,
PAN: BLZPS2105R ...Petitioner
VERSUS
1. Deputy Commissioner of CGST
& CX, Division IV, Navi Mumbai,
16th Floor: Satra Plaza, Palm Beach,
Road, Sector-19D, Vashi,
Navi Mumbai-400705.
2. Commissioner of CGST & CEX Appeals
Raigarh, 5 Floor, CGO Complex,
AMOL CBD Belapur, Navi Mumbai-400614.
PREMNATH
JADHAV
3. Union of India,
Digitally signed by through the Secretary,
AMOL PREMNATH
JADHAV Department of Revenue,
Date: 2024.10.10
14:37:00 +0530 Ministry of Finance, North Block,
New Delhi-1100001. ...Respondents
__________________________________________________________
A PPEARANCES -
Mr Steve Pulikkoden, For the Petitioner.
MR Ram Ochani, with Sangeeta Yadav, For the Respondents.
__________________________________________________________
CORAM : M.S.Sonak &
Jitendra Jain, JJ.
DATED : 09 October 2024
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Sagar Arvind Shah v Deputy Commissioner of
CGST & CX Division IV Navi Mumbai
15-oswpl-28753-2024(F).docx
ORAL JUDGMENT (Per MS Sonak J):-
1. Heard the learned Counsel for the parties.
2. Rule. The rule is made returnable immediately at the
request and with the consent of the learned Counsel for the
parties.
3. The challenge in this Petition is inter alia to the
impugned order dated 30 April 2024 by which the
Commissioner (Appeals) has dismissed the Petitioner's Appeal
on the ground of failure to deposit 7.5% of the demanded tax
amount, which is the requirement under Section 35(F) of the
Central Excise Act, 1944 has applicable to the Finance Act,
1994.
4. Mr Steve Pulikkoden, the counsel for the Petitioner,
submitted that the show cause notice dated 18 December
2020 issued to the Petitioner was ex-facie without jurisdiction,
as much as the same was issued beyond the prescribed period
of limitation. He submitted that since the show cause notice
was without jurisdiction, the orders based thereon were also
nullities. He submitted that in such circumstances, the
requirement of pre-deposit does not meet the test of non-
arbitrariness provided in Article 14 of the Constitution.
5. Mr Steve Pulikkoden submitted that the Petitioner's
income is hardly Rs. 10,000/--per month, and if a pre-deposit
of even 7.5%, which would come to approximately Rs.
62,500/--, is insisted upon, then the Petitioner would be
deprived of his valuable right of Appeal.
Sagar Arvind Shah v Deputy Commissioner of
CGST & CX Division IV Navi Mumbai
15-oswpl-28753-2024(F).docx
6. Mr Steve Pulikkoden submitted that there are decisions,
including the Delhi High Court's, which hold that this Court
has the liberty to waive such pre-deposit in matters where the
Petitioner has made out a strong prima facie case and grave
hardships would result if such waiver is not granted.
7. Mr Steve Pulikkoden, without prejudice to the above
contentions, submitted that the Petitioner, with great
difficulties, would arrange for the deposit of Rs. 62,500/-
(approximately) if the Petitioner is given an additional
opportunity and some reasonable time to deposit the same.
He, therefore, submitted that should this Court be not inclined
to waive the pre-deposit, at least an opportunity should be
given to the Petitioner to contest the Appeal on merits after
depositing 7.5% of the tax amount within a reasonable period
that this Court could fix.
8. Mr Ochani, the learned Counsel for the Respondents,
submits that a pre-deposit of 7.5% of the tax amount is a
mandatory requirement for hearing of the Appeal. He submits
that this issue is no longer resolved and relies upon Manjeet
Singh Vs the Union of India & Ors1 to support his submission.
He submits that there is no error, much less a jurisdiction
error, in the impugned order made by the Commissioner
(Appeals) and, therefore, this Court should not entertain the
present Petition.
9. We have considered the rival contentions and perused
the material on record, particularly the impugned order.
2022 SCC OnLine Bom 11905
Sagar Arvind Shah v Deputy Commissioner of
CGST & CX Division IV Navi Mumbai
15-oswpl-28753-2024(F).docx
10. At this stage, there is no question of our entertaining a
Petition to challenge the show cause notice. There is also no
infirmity in the Commissioner (Appeals) dismissing the
Petition for non-compliance with the pre-deposit condition. In
Manjit Singh (supra), the Coordinate Bench of this Court has
considered the legal provisions for pre-deposit and held that
there is no question of waiver of this requirement.
11. However, in the peculiar facts of the present case, some
indulgence is due to the Petitioner, who now says that he
would arrange to deposit 7.5% of the tax amount demanded
within some reasonable period. Mr Steve Pulikkoden has
submitted that the Petitioner is presently financially
embarrassed. He submitted that the business for which the tax
liability has reason was carried out by his father, who has
since expired. He submitted that the Petitioner tried to
continue with the business without much success. He pointed
out that the Petitioner even sold the transport vehicles and is
not involved in the transport business. He pointed out that the
liability now imposed upon the Petitioner relates to the past
period when the business was going on.
12. Considering the above peculiar facts, the petitioner can
be granted an additional opportunity without waiving the pre-
deposit requirement. Mr Steve Pulikkoden, on instructions,
submitted that the petitioner will make the pre-deposit if
some reasonable time is granted. He suggested four months,
which we think is excessive.
13. Accordingly, we set aside the impugned order dated 30
April 2024 made by the Commissioner (Appeals) and restore
the Appeal instituted by the Petition on the Commissioner
Sagar Arvind Shah v Deputy Commissioner of
CGST & CX Division IV Navi Mumbai
15-oswpl-28753-2024(F).docx
(Appeals) file for reconsideration. However, the Appeal shall
not be decided on merits until the Petitioner complies with the
requirement of a pre-deposit of 7.5% of the demanded tax
amount within three months from today.
14. If, for any reason, the Petitioner fails to deposit 7.5% of
the demanded tax amount within three months from today
with the Respondents, the Commissioner (Appeals), can
dismiss the Petitioner's Appeal on the ground of non-
compliance with the requirement for pre-deposit
15. Again, we clarify that this order is made in the present
case's peculiar facts and circumstances; therefore, the same is
not intended to be treated as a precedent.
16. The Rule is disposed of in the above terms without any
cost order. All concerned to act on an authenticated copy of
this order.
(Jitendra Jain, J) (M. S. Sonak, J)
