Manoj Kumar Gupta vs The Union Of India
2023 Latest Caselaw 1335 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                       W.P (T) No. 4357 of 2022

              Manoj Kumar Gupta, being a proprietor having its place of business at
              M/s R.C. Transport, Old Ranchi Road, Redma Daltonganj through its sole
              Proprietor Manoj Kumar Gupta            ---         ---    Petitioner
                                                 Versus
              1. The Union of India
              2. The Commissioner (Appeals), Central GST & CX, Ranchi
              3. The Deputy Commissioner, Central GST & CEx,
                 Ranchi North Division, Ranchi
              4. The Assistant Commissioner of Central GST & CEx,
                 Ranchi North Division, Ranchi        ---         ---    Respondents
                                                  ---

CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh Hon'ble Mr. Justice Deepak Roshan

---

              For the Petitioner:       Ms. Amrita Sinha, Advocate
              For the Respondents:      Mr. Amit Kumar, Advocate
                                             ----
06 / 27.03.2023      Petitioner has approached this Court as the statutory appeal being Appeal

No. 50/RAN/2022 has been dismissed by the Commissioner (Appeals), Central GST & CX-, Ranchi (Respondent no. 2) vide order dated 13.04.2022 (Annexure-3) only on the ground of failure to make pre-deposit of 7.5% of the duty and penalty. The impugned proceedings were initiated by demand cum show cause notice dated 28.09.2020 and culminated in Ex-parte Order-in- Original dated 06.12.2021 i.e., during the lockdown period prevailing in the country.

2. Petitioner has taken a plea that due to financial difficulty during the relevant period of time, he could not make the pre-deposit. As such, the appeal was dismissed vide order dated 13.04.2022. Petitioner is ready and willing to avail the alternative remedy of appeal and make pre-deposit, if an opportunity is given on grounds of extreme financial hardship. Learned counsel for the petitioner has relied upon a decision of this court rendered in W.P (T) No. 1506/2021 (Brij Bihari Tiwari Vs. The Union of India & Others) dated 14.07.2022, wherein this Hon'ble Court has allowed the said writ petition on similar grounds.

3. Plea of the petitioner has been opposed by the Respondent Department. Counter affidavit has been filed. It is submitted that the appeal was correctly dismissed by the Appellate Authority in exercise of power under Section 142(7)(a) and 142(7)(b) of the CGST Act, 2017 read with Section 85(4) of the Finance Act, 1994, as per the provisions of Section 35F of the Central Excise Act, 1944 since the petitioner did not make the mandatory pre-deposit of 7.5% of the duty and .2 penalty. Section 35F of the Central Excise Act, 1944 has been amended in the year 2014 and does not permit any waiver of pre-deposit. Learned counsel for the respondent has relied upon the judgment of Delhi High Court in W.P.(C) No. 3380 of 2016 [Suvidha Signs Studios Pvt. Ltd. Vs. Union of India] reported in [2016 (336) ELT 274 (Del), Para 5 and 6] where such request was declined.

4. We have considered the submission of learned counsel for the parties. The grounds of extreme financial hardship during the Covid period is not such which can be out rightly rejected. In order to obviate the difficulties faced by litigants and the authorities, the Hon'ble Supreme Court in suo motu writ petition No. 3 of 2020 has passed orders from time to time extending the period of limitation in judicial and quasi-judicial proceedings. The Order-in- Original was passed during the Covid period. The grounds of extreme financial hardship is understandable. The judgment of Delhi High Court relied by the learned counsel for the respondent is of the year 2016 and cannot be applicable in the exceptional circumstances prevailing during the Covid period.

5. Petitioner is now ready and willing to avail the alternative remedy of appeal and comply the mandatory requirement of pre-deposit of 7.5% of the duty and penalty. As such, subject to the deposit of 7.5% of the duty and penalty amount within a period of two weeks, the Appeal No. 50/RAN/2022 shall be restored before the Commissioner (Appeals), Central GST & CX, Ranchi (Respondent no.

2). If the petitioner fails to comply with the aforesaid condition, the impugned order shall remain intact.

6. The writ petition is disposed of.

(Aparesh Kumar Singh, J)

(Deepak Roshan, J) Ranjeet/