Grove Limited vs Joint Commissioner
2022 Latest Caselaw 9630 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
     THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
                        WP(C) NO. 27346 OF 2022
PETITIONER/S:


          GROVE LIMITED
          GROVE CENTRE, 45A DEVELOPMENT PLOT
          ERNAKULAM - 683 104, REPRESENTED BY ITS DIRECTOR,
          MRS JOLLY THOMAS, PIN - 683104
          BY ADVS.
          NITISH SATHESH SHENOY
          SUKUMAR NAINAN OOMMEN
          SHERRY SAMUEL OOMMEN


RESPONDENT/S:

    1     JOINT COMMISSIONER
          JOINT COMMISSIONER
          OFFICE OF THE CENTRAL EXCISE AND CUSTOMS
          CR BUILDING, IS PRESS ROAD, COCHIN - 18, PIN - 682018
    2     COMMISSIONER OF CENTRAL EXCISE (APPEALS)
          COMMISSIONER OF CENTRAL EXCISE (APPEALS)
          CENTRAL REVENUE BUILDING, IS PRESS ROAD, KOCHI - 682
          018, PIN - 682018
    3     THE SUPERINTENDENT OF CENTRAL EXCISE
          THE SUPERINTENDENT OF CENTRAL EXCISE
          SERVICE TAX "A" RANGE, CENTRAL EXCISE BHAVAN
          KATHRIKADAVU, COCHIN - 17, PIN - 682017
          BY ADV RAJESH. K.RAJU


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 27346 OF 2022            2



                               JUDGMENT

Petitioner has approached this Court, being aggrieved by

Ext.P3 order, by which the appeal filed by the petitioner before

the First Appellate Authority (the 2 nd respondent) has been

rejected on the ground that the petitioner has not made the

mandatory pre-deposit under Section 35F of the Central Excise

Act, 1944 as made applicable to the Finance Act, 1994.

2. Learned counsel appearing for the petitioner submits that

Ext.P3 order was issued on 16.11.2021 and that the petitioner

could not pursue the appeal, which was filed in the year 2015

properly only on account of the fact that the petitioner had

become non-operational and there were no business activities

in Kerala since 2016. It is submitted that this Court in

Nattakam Service Co-operative Bank Ltd V.

Superintendent of Central Tax and Central Excise,

Kottayam [2021] 127 Taxmann.com 575 (Kerala) , had

taken the view that if an appeal is dismissed for failure to make

a pre-deposit in terms of Section 35F of the Central Excise Act,

1944, an opportunity can be granted for making such deposit

which would enable the First Appellate Authority to consider

the matter on merits.

3. Learned Standing Counsel appearing for the respondents

submits that in the light of the judgment in Nattakam Service

Co-operative Bank (supra), an opportunity can be granted to

the petitioner to make a pre-deposit and have its appeal

decided on merits.

4. Having heard the learned counsel as above, this writ

petition is allowed. Ext. P3 order will stand set aside. Ext.P2

appeal will stand restored to the file of the 2 nd respondent on

condition that the petitioner makes the pre-deposit in terms of

Section 35F of the Central Excise Act 1944 as made applicable

to the Finance Act, 1994, within a period of one month from

today.

The writ petition is disposed of as above.

sd/-

GOPINATH P.

JUDGE ajt

APPENDIX OF WP(C) 27346/2022

PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE ORDER IN ORIGINAL ISSUED BY THE 1 ST RESPONDENT DATED 12.12.2014 Exhibit P2 A TRUE COPY OF THE APPEAL FILED BEFORE THE 2 ND RESPONDENT ON 20.04.2015 Exhibit P3 A TRUE COPY OF THE ORDER IN APPEAL NO COC-

EXCUS-000-APP-625 DATED 16.11.2021 ISSUED BY THE 2 ND RESPONDENT Exhibit P4 A TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER DATED 10.06.2022 WITH THE OFFICE OF THE 2 ND RESPONDENT UNDER THE RTI ACT Exhibit P5 A COPY OF THE LETTER DATED 21.06.2022 (WITHOUT ANNEXURES) RECEIVED BY THE PETITIONER FROM THE OFFICE OF THE 2 ND RESPONDENT Exhibit P6 A TRUE COPY OF THE LETTER DATED 24.06.2015 SENT BY THE 2 ND RESPONDENT TO THE 3 RD RESPONDENT Exhibit P7 A TRUE COPY OF THE E-MAIL DATED 06.09.2021 SENT FROM THE OFFICE OF THE 2 ND RESPONDENT Exhibit P8 A TRUE COPY OF THE ORDER OF THE HON'BLE NCLT DATED 15.01.2018 IN CP/689/(IB)/CB/2017 Exhibit P9 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN NATTAKAM SERVICE COOPERATIVE BANK LIMITED VS SUPERINTENDENT OF CENTRAL TAX AND CENTRAL EXCISE, KOTTAYAM [2021] 127 TAXMANN.COM 575 Exhibit P10 A TRUE COPY OF THE CERTIFICATE DATED 03.05.2022 ISSUED BY MSSRS SAJU & CO, CHARTERED ACCOUNTANTS