Kerala High Court
Commissioner (Appeals) vs M/S. Western Interior Designers & ... on 31 May, 2024
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
FRIDAY, THE 31ST DAY OF MAY 2024 / 10TH JYAISHTA, 1946
WA NO. 648 OF 2024
AGAINST THE JUDGMENT DATED 29.01.2024 IN WP(C) NO.41578 OF 2023
OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS:
1 COMMISSIONER (APPEALS),
OFFICE OF THE COMMISSIONER (APPEALS),
CENTRAL TAX, CENTRAL EXCISE & CUSTOMS,
CENTRAL REVENUE BUILDING, I.S. PRESS ROAD,
KOCHI, PIN - 682018
2 JOINT COMMISSIONER,
OFFICE OF THE PRINCIPAL COMMISSIONER,
CENTRAL TAX AND CENTRAL EXCISE,
CENTRAL REVENUE BUILDING, I.S. PRESS ROAD,
KOCHI, PIN - 682018
3 DEPUTY COMMISSIONER,
OFFICE OF THE DEPUTY COMMISSIONER,
CENTRAL TAX AND CENTRAL EXCISE,
CENTRAL REVENUE BUILDING, I.S. PRESS ROAD,
KOCHI, PIN - 682018
4 ASSISTANT COMMISSIONER,
OFFICE OF THE ASSISTANT COMMISSIONER,
CENTRAL EXCISE, CUSTOMS & SERVICE TAX, 682017,
SERVICE TAX DIVISION, ENTRAL EXCISE BHAVAN,
KATHRIKADAVU, KALOOR, KOCHI, PIN - 682018
BY ADV J.VISHNU
RESPONDENTS/WRIT PETITIONER:
M/S. WESTERN INTERIOR DESIGNERS & MARINE CONTRACTORS,
27/1084 D, 1ST FLOOR, KARTHIKA APARTMENTS,
PANAMPILLY NAGAR, KOCHI - 682 036,
REPRESENTED BY ITS MANAGING PARTNER HISHAM BASHEER,
AGED 40 YEARS, S/O BASHEER KUTTY,
:2:
WA No.648 of 2024
RESIDING AT FLAT NO.G2, GALAXY CLIFFORD APARTMENT,
CHILAVANNOOR, BUND ROAD JUNCTION,
KADAVANTHRA, PIN - 682020
BY ADV SRI JOSE JOSEPH,SC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
31.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
:3:
WA No.648 of 2024
JUDGMENT
Dr. A.K.Jayasankaran Nambiar, J.
This Writ Appeal is filed by the respondents in WP(C). No.41578
of 2023, impugning the judgment dated 29.01.2024 of the learned
Single Judge in the Writ Petition.
2. Briefly stated the facts necessary for the disposal of the Writ
Appeal are that the writ petitioner had approached this Court aggrieved
by the orders passed by the appellants herein, dismissing appeals
preferred by the writ petitioner against Exts.P6 and P7 orders passed
by the Deputy Commissioner of Central Tax and Central Excise
confirming a demand of service tax on the respondent writ petitioner.
The appellant Appellate Authority had dismissed the appeals preferred
by the writ petitioner against Exts.P6 and P7 orders on the ground that
the respondent writ petitioner had not paid the mandatory pre-deposit
of 7.5% of the confirmed amounts of tax while preferring the appeals
before the Appellate Authority. It was the case of the respondent writ
petitioner in the Writ Petition that, prior to dismissing the appeal the
appellants had not issued the respondent writ petitioner with any defect
notice pointing out the defect of non-payment of the pre-deposit
amount, and hence the dismissal of the appeals on that ground was
erroneous in law.
3. The said contention of the respondent writ petitioner found
favour with the learned Single Judge who proceeded to allow the Writ
Petition by permitting the respondent writ petitioner to make the pre-
deposit of 7.5% within a period of three weeks from the date of the
judgment, and directing the appellant herein to restore Exts.P8 and P9
appeals against Exts.P6 and P7 orders before it and to decide the
appeals expeditiously in accordance with the law.
4. The appellant Appellate Authority points out before us that the
appellants had in fact served defect notices on the respondent writ
petitioner, pointing out the defect of non-payment of the pre-deposit
amount, and it was on account of the respondent writ petitioner not
making the pre-deposit despite the defect notices that he was
constrained to dismiss the appeals on the ground of non-payment of
pre-deposit. The appellant, therefore, seeks to set aside the judgment
of the learned Single Judge to the extent it directs the appellant to
accept the pre-deposit amount and restore the appeals before it.
5. We have heard Sri. Vishnu Jayapalan, the learned counsel for
the appellants and Sri.Jose Joseph, the learned Standing counsel for the
respondent writ petitioner.
6. On a consideration of the rival submissions, while we find force
in the submission of the learned counsel for the appellant that inasmuch
as the requirement of pre-deposit is a statutory obligation cast upon an
assessee who chooses to prefer an appeal before the Appellate
Authority under the provisions of the Finance Act, 1994, as amended, as
applicable to service tax, it was incumbent upon the respondent writ
petitioner to have made the pre-deposit as a condition for maintaining
the appeals before the Appellate Authority. In that sense, there was no
obligation on the department to issue any defect notice to the assessee
although it is a usual practice for the department to point this out to
assessees in the interests of fairness. In the instant case, not only did
the assessee not pay the pre-deposit amount within the statutory period
prescribed under the Act for maintaining the appeals before the
Appellate Authority, but the appeals were also dismissed by the
Appellate Authority only a year thereafter for non-payment of pre-
deposit. In the meanwhile, although the appellant had communicated
the defect of non-payment of pre-deposit through emails sent to the
email address of the respondent writ petitioner, he had not chosen to
effect the payment of the mandatory pre-deposit. Under the said
circumstances, the directions of the learned Single Judge in the
impugned judgment cannot be legally sustained.
7. We find, however, that pursuant to the impugned judgment of
the learned single judge, and in compliance therewith, the respondent
has effected the payment of the pre-deposit amount to maintain the
appeals before the Appellate Authority, and the said amount of pre-
deposit was duly accepted by the appellants without demur. It is
thereafter that they have chosen to file this appeal. Under the said
peculiar circumstances, where the pre-deposit amount has already been
accepted by the appellant, and in that sense the directions issued by
the learned Single Judge have already been complied with by the
parties, we do not deem it necessary to upset the direction of the
learned Single Judge with regard to the hearing of the appeals on
merits by the appellant Appellate Authority. Thus, while the impugned
judgment of the learned Single Judge is not legally sustained, and shall
not operate as a precedent in future cases, under the peculiar
circumstances obtaining herein, the directions issued by the learned
Single Judge to hear Exts.P8 and P9 appeals on merits after restoring
them to file, are not interfered with solely because we find that the
appellant had chosen to comply with the directions of the learned
Single Judge before filing this appeal by accepting the pre-deposit
amount of 7.5% in both the statutory appeals referred above.
The Writ Appeal is disposed as above.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
SYAM KUMAR V.M.
JUDGE
mns
PETITIONER ANNEXURES
Annexure A1 A TRUE COPY OF THE EMAIL SENT BY THE
COMMISSIONER OF APPEALS TO THE WRIT
PETITIONER DATED 25.07.2022
Annexure A2 A TRUE COPY OF THE EMAIL SENT BY THE
COMMISSIONER OF APPEALS TO THE WRIT
PETITIONER DATED 06.11.2022
