M/S. Roadwings International ... vs Union Of India And Ors
2023 Latest Caselaw 2700 Cal/2

OD -3

                                 ORDER SHEET
                               WPO/1593/2023
                      IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                               ORIGINAL SIDE

            M/S. ROADWINGS INTERNATIONAL PRIVATE LIMITED
                                VS
                      UNION OF INDIA AND ORS.

  BEFORE:
  The Hon'ble JUSTICE MD. NIZAMUDDIN
  Date: 26th September, 2023.
                                                                          Appearance:
                                                                Mr. Aditya Dutta, Adv.
                                                                Mr. Akash Dutta, Adv.
                                                                   ...For the Petitioner
                                                        Mr. Debasish Chowdhury, Adv.
                                                               Mr. Amit Sharma, Adv.
                                                                  ...For Union of India
                                                                   Mr. K.K. Maiti, Adv.
                                                              Mr. Tapan Bhanja, Adv.
                                                              ....For CGST Authorities

        The Court: Heard learned advocates appearing for the parties.

        Petitioner has filed this writ petition seeking relief of allowing it to

make statutory pre-deposit for filing the appeal before the appellate

authority by way of bank guarantee.

        Mr. Maiti, learned advocate appearing for the respondent CGST

Authority in opposing the writ petition for allowing the petitioner to make

pre-deposit by way of bank guarantee has relied on a decision of the Hon'ble

Supreme Court in the case of Hindustan Coca Cola Beverage (P) Ltd. vs.

Union of India reported in 2017 (50) S.T.R. 96 (S.C.) which is quoted as

hereunder :

"11. Be it stated, there is no cavil over the fact that an appeal lies

under Section 35 of the Central Excise Act, 1944 to the Commissioner

(Appeals), who can address both the issues relating to facts and law keeping

in view the applicability of the relevant notifications. It is borne out from the

record that the assessee-appellant had furnished a bank guarantee

amounting to Rs. 2,20,18,124/- for obtaining an order of Stay. In our

considered opinion it would not be appropriate to give an opportunity to the

appellant to prefer statutory appeals and allow it to enjoy the benefit of stay

of recovery on the basis of a bank guarantee. Therefore, we would direct the

assessee to deposit Rs. 2.5 crores before the adjudicating authority within

six weeks and after the said deposit is made and the receipt obtained, the

appeal would be entertained within the said period. On an appeal being

filed, the Commissioner (Appeals) shall deal with the matter on merits.

Learned Attorney General very fairly stated that the revenue would not raise

the issue of limitation as the period spent before the High Court and this

Court and the time granted for depositing of the amount would stand

excluded for the purpose of preferring the appeal."

Considering the aforesaid judgment of the Hon'ble Supreme Court, I

am not inclined to entertain this writ petition and grant any relief.

Accordingly, this writ petition being WPO 1593 of 2023 is dismissed.

(MD. NIZAMUDDIN, J.)

TR/