HC Allows Appeal Revival Before CESTAT with Pre-Deposit Payment.

Court Name : Allahabad High Court

Parties : Madhyamik Shiksha Parishad Vs Customs Excise And Service Tax Appellate And Another

Decision Date : 25 May 2023

Judgement ref : Central Excise Appeal Defective No. 8 of 2023

Re: Civil Misc. Delay Condonation Application No. 2 of 2023

1. Heard Sri Rajan Srivastava, learned counsel for the appellant

and Sri Amit Mahajan, learned counsel for the revenue.

2. The present appeal has been filed with a delay of 147 days.

Subject to payment of cost Rs. 10,000/- to the High Court Legal

Services Committee by 15.06.2023, delay in filing the present

appeal is condoned. Delay condonation application is allowed.

Order on Appeal

3. Present appeal has been filed under Section 35-G of the

Central Excise Act, 1944 (hereinafter referred to as the 'Act')

arising from the order dated 02.08.2022 passed by the Customs,

Excise & Service Tax Appellate Tribunal, Allahabad, Regional

Bench in Defect Diary No. 702572021 (M/s Madhyamik

Shiksha Parishad Vs. Commissioner, Central Tax, GST &

Central Excise, Allahabad). By that order, the Tribunal has

rejected the appeal filed by the present appellant against the

order (in appeal) dated 12.01.2021 passed by the Commissioner

(Appeals), CGST and Central Excise, Allahabad.

4. The only reason to dismiss the appeal (as disclosed in the

impugned order), is non-compliance of the mandatory

requirement of Section 35-F of the Act with respect to predeposit to maintain the statutory appeal.

5. While there is no dispute that the right of appeal claimed by

the appellant before the Tribunal was conditional inasmuch as

such appeal may be maintained only upon making pre-deposit

prescribed by the statute, at present, learned counsel for the

appellant prays for some time to make the pre-deposit to

maintain the appeal before the Tribunal.

6. Undisputedly, the appellant is a statutory board constituted

by the Government of U.P. In such circumstance, upon query

made, Sri Amit Mahajan, learned counsel for the revenue fairly

states, if the present appellant were to make good the deposit

within a period of one month from today, the revenue would

have no objection to the impugned order being set aside so as to

allow the appellant to press its appeal on merits.

7. In view of such statement made, no useful purpose would be

served in seeking to decide the legal issues being raised.

8. Accordingly, the present appeal is disposed of with the

observation, in case the appellant pays the cost, as above and,

deposits the pre-deposit amount to maintain its appeal on or

before 30.06.2023, the impugned order dated 02.08.2022 shall

stand set aside and the appeal would revive before the Tribunal,

to be heard and decided on merits.

Order Date :- 25.5.2023

Abhilash

(Rajendra Kumar-IV, J.) (S. D. Singh, J.)