Jharkhand High Court
M/S. Allied India Iron And Steel Private ... vs The Principal Commissioner on 12 September, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (T) No. 4927 of 2024
M/S. ALLIED INDIA IRON AND STEEL PRIVATE LIMITED, a
Company incorporated under the provisions of the Companies Act,
203, having its Registered Office at Mohanpur, Tundi Road, Giridih-
815301, through its Director, Md. Mahboob Alam, son of Late Md.
Shafi, aged about 59 years, resident of 127, Tundi Road, near Madina
Masjid, Barwadih, P.O. & P.S. Giridih, District- Giridih, Jharkhand.
..... PETITIONER
Versus
The Principal Commissioner, C.G.S.T. & CX, Ranchi, having his office
at 5A, Central Revenue Building, Main Road, Ranchi, P.O. & P.S.-
Chutia, District - Ranchi, Jharkhand.
.... RESPONDENT
---------
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN KUMAR RAI
---------
For the Petitioner: Ms. Sidhi Jalan, Advocate
For the Respondent: Mr. P.A.S Pati, Sr. Standing Counsel, CGST
Mr. Anurag Vijay, Jr. Standing Counsel, CGST
Mr. Om Prakash, Advocate
Mr. Srijan Pandey, Advocate
---------
05/Dated: 12.09.2024
Per Sujit Narayan Prasad, A.C.J.
1) The petitioner has filed the instant writ petition under Article 226
of the Constitution of India seeking for the following reliefs:-
a) For issuance of an appropriate writ, order or direction,
waiving off/exempting the Petitioner from making the
pre-deposit for maintaining an appeal before the
Learned Registrar of Customs, Excise & Services Tax
Appellate Tribunal, Eastern bench, Kolkata due to the
financial hardship being faced by the Petitioner
Company, in light of business activities having been
closed far back in the year, and as such, allow the
petitioner to prefer an appeal without making
mandatory pre-deposit of 7.5%
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b) For issuance of an appropriate writ, order or direction
for quashing and setting aside the order dated
23.04.2024, issued on 30.04.2024 (Annexure 3),
passed by the Learned Principal Commissioner,
Central GST & Central Excise, Ranchi, wherein and
whereunder, the Ld. Assessing Authority has been
pleased to impose an amount of Rs.7,20,31,936/-
along with applicable interest and penalty of
Rs.7,2,31,936/- on the Petitioner Company.
2) In course of hearing, learned counsel for the petitioner has
admitted that the order dated 23.04.2024 passed by the Principal
Commissioner, Central GST & Central Excise, Ranchi is to be
challenged before the Appellate Authority, but in view of the
requirement of pre-deposit of the prerequisite amount as per the
provision made under Section 35F of the Central Excise Act, 1944, the
petitioner has approached this Hon'ble Court for waiver of the same.
3) The learned counsel for the petitioner has placed reliance on the
judgment passed by the Division Bench of this Court in the case of Raj
Jaiswal Vs. Union of India, reported in 2020 SCC OnLine Jhar 714.
4) This Court has heard the learned counsel appearing for the
parties.
5) In the facts above, it appears that the requirement of pre-deposit
of the amount is not in dispute, rather, one of the prayers is to exempt
the petitioner from making the pre-deposit for maintaining the appeal
before the Registrar of Customs, Excise & Services Tax Appellate
Tribunal, Eastern Bench, Kolkata.
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6) This Court has considered the said provision as contained under
Section 35F of the Act and found therefrom that the power has been
conferred upon to waive the prerequisite depending upon the condition
for consideration by the appellate forum, but for the same, an
application is to be filed seeking waiver of the requirement of pre-
deposit of the amount for filing an appeal before the Appellate
Authority. The judgment upon which the learned counsel for the
petitioner has relied upon also speaks about the same thing.
7) The factual aspect of the said case, as would appear the
reference made therein, is that the waiver application is to be made for
its consideration by the Appellate Authority.
8) The admitted fact in this case is that no waiver application has
been filed and the petitioner without raising the issue of waiver has
directly approached this Court seeking a direction from this Court to
exempt the petitioner from depositing the prerequisite amount for
maintaining the appeal.
9) It is the cardinal rule of interpretation that where the statute
provides that a particular thing should be done, it should be done in the
manner prescribed and not in any way, reference in this regard be
made to the judgment rendered by Hon'ble Apex Court in the case of
State of Uttar Pradesh vs. Singhara Singh and Ors. AIR (1964) SC
358, wherein it has been held as under:
25. "....its result is that if a statute has conferred a power to do
an act and has laid down the method in which that power has to
be exercised, it necessarily prohibits the doing of the act in any
other manner than that which has been prescribed. The
principle behind the rule is that if this were not so, the statutory
provision might as well not have been enacted...."
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10) Similarly, the Hon'ble Apex Court in the case of Babu Verghese
and Ors. vs. Bar Council of Kerala and Ors., (1999) 3 SCC 422, has
held at paragraphs 31 & 32 as under:
"31. It is the basic principle of law long settled that if the manner
of doing a particular act is prescribed under any statute, the act
must be done in that manner or not at all. The origin of this rule
is traceable to the decision in Taylor v. Taylor which was
followed by Lord Roche in Nazir Ahmad v. King Emperor who
stated as under: "[W]here a power is given to do a certain thing
in a certain way, the thing must be done in that way or not at
all."
32. This rule has since been approved by this Court in Rao
Shiv Bahadur Singh v. State of V.P. and again in Deep Chand
v. State of Rajasthan. These cases were considered by a three-
judge bench of this Court in State of U.P. v. Singhara Singh and
the rule laid down in Nazir Ahmad case was again upheld. This
rule has since been applied to the exercise of jurisdiction by
courts and has also been recognized as a statutory principle of
administrative law."
11) Further, the Hon'ble Apex Court in the case of State of
Jharkhand & Ors. vs. Ambay Cements & Anr., (2005) 1 SCC 368,
has held at paragraph 26 as under:
"....it is the cardinal rule of interpretation that where a statute
provides that a particular thing should be done, it should be
done in the manner prescribed and not in any other way. It is
also settled rule of interpretation that where a statute is penal in
character, it must be strictly construed and followed....."
12) The Hon'ble Apex Court while reiterating the same view in the
case of Zuari Cement Ltd. vs. Regional Direction ESIC Hyderabad
& Ors. (2015) 7 SCC 690, has held at paragraph 14 as under:
"14. As per the scheme of the Act, the appropriate Government
alone could grant or refuse exemption. When the statute
prescribed the procedure for grant or refusal of exemption from
the operation of the Act, it is to be done in that manner and not
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in any other manner. In State of Jharkhand v. Ambay Cements,
it was held that: (SCC p. 378, para 26)
26.... it is the cardinal rule of interpretation that where a
statute provides that a particular thing should be done, it
should be done in the manner prescribed and not in any
other way."
13) In the backdrop of the aforesaid settled legal position this Court
is of the view that when there is already a power conferred upon the
Appellate Authority under Section 35F Central Excise Act, 1944 to take
decision with respect to the waiver of the amount to be deposited as
prerequisite for filing appeal, then it will not be just and proper for this
Court to enter into merits of the writ petition by exempting the petitioner
from depositing prerequisite amount for maintaining the appeal, rather
the petitioner is to approach before the Appellate Authority for the
aforesaid purpose.
14) Accordingly, the instant writ petition is dismissed, however,
liberty is reserved to the petitioner to approach the Appellate Authority
as per the provision contained under Section 35F of the Central Excise
Act, 1944, within a period of three weeks from today.
(Sujit Narayan Prasad, A.C.J.)
(Arun Kumar Rai, J.)
A.F.R.
Manoj/Cp.2
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