Gauhati High Court
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GAHC010169212023
2025:GAU-AS:3470
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4542/2023
MD SAMSUDDIN AHMED
PROPRITOR OF M/S S. AHMED AND CO., MULIABARI, P.O.-DIGBOI, PIN-
786171, DIST-TINSUKIA, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE
DEPARTMENT OF REVENUE, CENTRAL BOARD OF INDIRECT TAXES AND
CUSTOMS, NORTH BLOCK, NEW DELHI-110001
2:THE COMMISSIONER (APPEALS)
CGST
CENTRAL EXCISE AND CUSTOMS
G.S.T. BHAWAN
3RD FLOOR
KEDAR ROAD
MACHKHOWA
GUWAHATI-781001
ASSAM
3:THE ADDITIONAL COMMISSIONER
OFFICE OF THE COMMISSIONER OF CENTRAL
GOODS AND SERVICES TAX
MILAN NAGAR
F LANE
P.O.-C.R. BUILDING
DIBRUGARH-786003
ASSAM
4:THE JOINT COMMISSIONER
OFFICE OF THE COMMISSIONER OF CENTRAL
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GOODS AND SERVICES TAX
MILAN NAGAR
F LANE
P.O.-C.R. BUILDING
DIBRUGARH-786003
ASSAM
5:OIL INDIA LIMITED
REPRESENTED BY GENERAL MANAGER-CONTRACTS (HOD)
OIL INDIA LTD
DULIAJAN-786602
ASSAM
6:INDIAN OIL CORPORATION LIMITED (ASSAM OIL DIVISION)
REPRESENTED BY THE DGM (CONTRACTS) INDIAN OIL CORPORATION
LIMITED (ASSAM OIL DIVISION)
P.O.-DIGBOI-786171
ASSA
Advocate for the Petitioner : MS. M BHATTACHARJEE, MS. P DASGUPTA
Advocate for the Respondent : DY.S.G.I., SC, OIL,SC, GST
BEFORE
THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY
ORDER
26.03.2025
1. None appears for the petitioner on call. Mr. SC Keyal, learned standing
counsel for the GST is present. Also present Mr. L Sangtam, learned counsel on behalf
of Mr. A Sarma, learned counsel for the respondent Nos. 5 and 6.
2. The petitioner, an assessee under the Finance Act, 1994, was served with a
Demand-cum-Show Cause Notice dated 29.09.2020 asking him to show cause as to
why service tax amounting to Rs. 1,46,41,544/- on the services rendered during the
period from Financial Year : 2014 - 2015 (October, 2014 to March, 2015) to Financial
Year : 2017 - 2018 should not be demanded and recovered from him under the
proviso to sub-section (1) of Section 73 of the Finance Act, 1994, as amended, plus
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interest and penalty, etc. under the other provisions of the Finance Act, 1994. In
response to the said Demand-cum-Show Cause Notice, the petitioner as the assessee
submitted its Reply dated 25.01.2021. It is stated by the Adjudicating Authority that
the said Reply was received at his office on 12.02.2021. The Order-in-Original was
passed by the Adjudicating Authority on 31.05.2022. As an appeal against the said
Order-in-Original lied before the Commissioner, Customs & Central Excise Appeal,
CGST within a period of 60 days from the date of communication of the Order-in-
Original, the petitioner preferred an appeal before the Appellate Authority. The
Appellate Authority passed the Order-in-Appeal on 17.05.2023 recording that the
petitioner-appellant did not make payment of mandatory pre-deposit @ 7.5% of the
amount in dispute while filing the appeal under Section 35 of the Central Excise Act,
1944. Stating that such deposit is a mandatory pre-condition for filing an appeal, an
appeal was not entertained for any decision on merits. Aggrieved by the said Order-in-
Appeal dated 17.05.2023, the petitioner has preferred the instant writ petition under
Article 226 of the Constitution of India, which has been registered on 05.08.2023.
3. In the aforesaid backdrop, this court framed two issues, firstly, whether a
writ petition can be entertained when the petitioner did not prefer statutory appeal
before the Customs, Excise and Service Tax Appellate Tribunal, and secondly, if the
writ petition is entertained, whether this Court can consider any issue on merits when
the appeal was not entertained as the petitioner appellant did not fulfil the condition
of mandatory pre-deposit at the time of filing an appeal.
4. Mr. Keyal, learned counsel representing the respondent submits that the
Bombay High Court in Kantilal Bhaguji Mohite vs. Commissioner, Central Excise and
Service Tax-Pune III held that Section 35-F of the Central Excise Act, 1944 are
mandatory. It is also submitted by Mr. Keyal that such decision was challenged before
the Hon'ble Apex Court and the Hon'ble Apex Court has also upheld the judgment of
the Bombay High Court holding that pre-deposit mandated under statute for filing
appeals cannot be waived in exercise of writ jurisdiction. Accordingly, this writ petition
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is liable to be dismissed.
5. Be that as it may, as none appears for the petitioner on call, without going
into the merit of the claim, let this writ petition be dismissed for non-prosecution.
JUDGE
Comparing Assistant
