The Nattakam Service ... vs The Superintendent Of Central Tax ...
2021 Latest Caselaw 929 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR. JUSTICE A.M.BADAR

     MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

                         WP(C).No.705 OF 2021


PETITIONER:

               THE NATTAKAM SERVICE CO-OPERATIVE BANK LIMITED
               NO.3839, REPRESENTED BY ITS SECRETARY SHEEBA.P., AGED
               52 YEARS, W/O.REJI R., NATTAKOM, PAKKIL P.O.,
               KOTTAYAM DISTRICT, PIN-686 012.

               BY ADV. SRI.C.A.JOJO

RESPONDENTS:

      1        THE SUPERINTENDENT OF CENTRAL TAX AND CENTRAL EXCISE
               V PUBLISHERS BUILDING, KOTTAYAM POST, PIN-686 001.

      2        THE DEPUTY COMMISSIONER,
               OFFICE OF THE DEPUTY COMMISSIONER OF CENTRAL TAX AND
               CENTRAL EXCISE, ICE BHAVAN, PRESS CLUB ROAD,
               THIRUVANANTHAPURAM-695 001.

      3        THE COMMISSIONER,
               OFFICE OF THE COMMISSIONER OF CENTRAL TAX AND CENTRAL
               EXCISE, CR BUILDING, IS PRESS ROAD, ERNAKULAM, KOCHI-
               682 018.




               SC,CBEC-SRI.SREELAL N.WARRIAR(SR.)

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.705 OF 2021

                                             2

                                         JUDGMENT

Dated this the 11th day of January 2021

By this petition, the petitioner has prayed for the following

reliefs.

I. To issue a writ order or direction to revive Ext.P3 appeal by accepting 7.5% pre-deposit and dispose of the appeal within a specified time.

II. To declare that Ext.P2 order issued by the 2 nd respondent is Ultra Vires, illegal and arbitrary.

III. To declare that Ext.P4 order issued by the 3 rd respondent is Ultra Vires, illegal and arbitrary and denial of natural justice to the petitioner.

IV. To issue a writ of mandamus or other appropriate writ, order or direction directing the respondents not to recover disputed tax till the disposal of this writ petition.

2. Heard the learned counsel for the petitioner. He argued that

the service rendered by the petitioner Society were considered as

taxable service by the order in original passed by the learned Asst.

Commissioner and the said order came to be challenged by the

petitioner by filing a statutory appeal before the Commissioner of

Central Taxes and Central Excise (Appeals) Cochin.

3. The learned counsel for the petitioner further argued that

though at the time of filing of the appeal, the petitioner was of the

opinion that pre-deposit of tax amount as required by Section 35 F WP(C).No.705 OF 2021

of the Central Finance Act, 1994 is not mandatory but as of now the

petitioner is willing to deposit the amount as required by the said

provision. He therefore requests that the appeal which is rejected by

the impugned order with an observation that as pre-deposit is not

made by the petitioner, needs to be reviewed .

4. The learned counsel for the petitioner drew my attention

to the judgment of this Court in WP(C) No. 19148 of 2020 decided on

16.09.2020 and submits that in identical situations, this Court has

permitted the petitioner therein to make pre-deposit for

entertaining the appeal which was rejected on that ground.

5. I have also heard the learned counsel appearing for the

respondents. Learned counsel for the respondents justified the

impugned order passed by the learned Commissioner (Appeals)

rejecting the appeal for want of pre-deposit.

6. Considering the fact that the appeal is a statutory appeal

and the same is only rejected because of non-deposit of the amount

required for entertaining the appeal per provisions of Section 35 F of

the Finance Act, 1994, I am of the considered opinion that one more WP(C).No.705 OF 2021

opportunity needs to be granted to the petitioner for depositing the

amount as required by Section 35 F of the Finance Act for entertaining

the statutory appeal on merits.

7. In this view of the matter, the petition is disposed of with the

following order:-

(i) The impugned order of rejection of the appeal is quashed and

set aside.

(ii) The petitioner is permitted to deposit the amount as envisaged

by Section 35 F of the Finance Act, 1994 towards pre-deposit for

entertaining his statutory appeal. Said amount be deposited within a

period of one month from today. On the petitioner depositing the said

amount, the appellate authority shall consider and decide the appeal

afresh in accordance with law.

The petition is accordingly disposed.

Sd/-

                                                     A.M.BADAR

Nsd                                                    JUDGE
//true copy//
PA to Judge
 WP(C).No.705 OF 2021




                           APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1             A TRUE COPY OF THE SCN NO.101/2018/ST DATED
                       08.03.2018 ISSUED BY THE JOINT
                       COMMISSIONER.

EXHIBIT P2             A TRUE COPY OF THE ORDER IN ORIGINAL

NO.06/2019/ST/DC DATED 31.01.2019 BY THE 2ND RESPONDENT.

EXHIBIT P3 A TRUE COPY OF THE APPEAL WITH A PETITION FOR WAIVER OF PRE-DEPOSIT DATED 04.04.2019 BEFORE THE 3RD RESPONDENT.

EXHIBIT P4 A TRUE COPY OF THE ORDER A NO.38/ST/TVM/2019 DATED 21.12.2020 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P5 A TRUE COPY OF THE JUDGMENT IN WPC NO.19148 OF 2020 DATED 16.09.2020.