Rejy K. John vs Commissioner (Appeals)
2023 Latest Caselaw 674 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
    THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
                        WP(C) NO. 982 OF 2023
PETITIONER:

          REJY K. JOHN,
          AGED 47 YEARS,
          S/O. CHACKO JOHN,
          KARAMELTHARAYIL HOUSE, KARIKODE P.O.,
          PERUVA, KOTTAYAM DISTRICT,
          PIN - 686 610.

          BY ADVS.
          K.SASIKUMAR
          P.S.RAGHUKUMAR
          S.ARAVIND



RESPONDENTS:

    1     COMMISSIONER (APPEALS),
          CENTRAL TAX, CENTRAL EXCISE & CUSTOMS,
          CENTRAL REVENUE BUILDINGS, I.S. PRESS ROAD,
          KOCHI - 682 018.

    2     THE ASSISTANT COMMISSIONER OF CENTRAL TAX & CENTRAL
          EXCISE,
          KOTTAYAM DIVISION, V. PUBLISHERS BUILDINGS,
          SREENIVASA IYER ROAD, KOTTAYAM - 686 001.

          ADV. SREELAL N WARRIER (SC)




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 982 OF 2023

                                2




                          JUDGMENT

The petitioner suffered Ext.P1 order-in-original under the

provisions of the Finance Act, 1994. Though the petitioner

preferred Ext.P2 appeal, the same has been rejected by Ext.P3

order finding that the appeal is not maintainable as the

petitioner has not made the mandatory pre-deposit.

2. The learned counsel appearing for the petitioner

would submit that while filing the appeal, the petitioner had

filed an application for extension of time to make the pre-

deposit and without giving any further intimation to the

petitioner, the appeal of the petitioner has been rejected on the

ground that the petitioner had not made the mandatory pre-

deposit.

3. The learned Senior Standing Counsel appearing for

the respondent Department would point out that the appeal

filed by the petitioner was clearly not maintainable. It is

submitted that there was no reason for the Department to have

issued any communication to the petitioner calling upon the

petitioner to make the mandatory pre-deposit. It is submitted

that therefore, no fault can be found with the appellate WP(C) NO. 982 OF 2023

authority in having rejected Ext.P2 appeal by Ext.P3 order. It is

also pointed out that the order itself was issued in the year

2021 and the petitioner has chosen to challenge the order only

now.

4. The learned counsel appearing for the petitioner

would submit that the petitioner could not make the mandatory

pre-deposit only on account of financial difficulties and that the

petitioner is willing to make that deposit immediately. He

submits that if Ext.P3 order is upheld, the petitioner will be put

to serious prejudice, injury and hardship as the petitioner has a

substantial case to be argued on merits.

Having heard the learned counsel appearing for the

petitioner and the learned Senior Standing counsel appearing

for the respondent Department, I am of the view that though

the petitioner has not made out any case for interference with

Ext.P3 order, purely as a matter of indulgence and to permit the

petitioner to contest the matter on merits, Ext.P3 order will

stand set aside on condition that the petitioner makes the

mandatory pre-deposit within a period of ten days from the date

of receipt of a certified copy of this judgment. If the petitioner

fails to make the pre-deposit within the aforesaid period of ten WP(C) NO. 982 OF 2023

days, Ext.P3 order will continue to operate. If the petitioner

makes the pre-deposit within a period of ten days as above,

Ext.P3 order will stand set aside and Ext.P2 appeal filed by the

petitioner shall stand restored to file and shall be considered

and decided on merits after affording an opportunity of hearing

to the petitioner. I make it clear that the directions contained in

this judgment are not to be treated as a precedent applicable in

all matters.

The writ petition will stand disposed of as above.

Sd/-

GOPINATH P.

JUDGE

DK WP(C) NO. 982 OF 2023

APPENDIX OF WP(C) 982/2023

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE ORDERS-IN-ORIGINAL NOS. 35 & 36/2017 ST DATED 17-03-2017 ISSUED BY THE 2ND RESPONDENT

Exhibit P2 A TRUE COPY OF THE APPEAL DATED 22-05-

2017 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT

Exhibit P3 A TRUE COPY OF THE ORDER-IN-APPEAL NO.

COC-EXCUS-000-APP-636 & 637-2021 DATED 28-10-2021 PASSED BY THE 1ST RESPONDENT

Exhibit P4 A TRUE COPY OF THE APPLICATION DATED 05-01-2022 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT

Exhibit P5 A TRUE COPY OF THE LETTER DATED 13-12-

2022 ISSUED BY THE SUPERINTENDENT IN THE OFFICE OF THE 2ND RESPONDENT

Exhibit P6 A TRUE COPY OF THE JUDGMENT DATED 9-9-

2020 OF THIS HON'BLE COURT IN WP-C NO. 18180/2020