Gujarat High Court
Rajkamal Textile Printery - A ... vs Union Of India & 2 on 3 December, 2015
Author: Akil Kureshi
Bench: Akil Kureshi, Mohinder Pal
C/SCA/14229/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14229 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
any order made thereunder ?
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RAJKAMAL TEXTILE PRINTERY - A PARTNERSHIP FIRM & 1....Petitioner(s)
Versus
UNION OF INDIA & 2....Respondent(s)
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Appearance:
MR DEVAN PARIKH, ADVOCATE, with MR HASIT DILIP DAVE, ADVOCATE for the
Petitioner(s) No. 1 - 2
KSHITIJ M AMIN, ADVOCATE for the Respondent(s) No. 1
MR YN RAVANI, ADVOCATE for the Respondent(s) No. 2 - 3
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 03/12/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Petitioners have challenged order dated 11.06.2015, as at Annexure-A to the petition, passed by the Customs, Excise & Page 1 of 5 HC-NIC Page 1 of 5 Created On Tue Dec 08 01:38:42 IST 2015 C/SCA/14229/2015 JUDGMENT Service Tax Appellate Tribunal (for short, "the Tribunal"). Brief facts are as under:
2. Petitioners had filed appeals before the Tribunal challenging the order of the adjudicating authority in which the petitioners were required to make pre-deposit of rupees one crore. The petitioners consistently pleaded that they did not have any means of making such deposit. The petitioners in one of the proceedings, as can be seen from order dated 18.01.2012 passed by the Tribunal, pleaded that the Revenue had attached immovable properties of the petitioners, namely land and building of the petitioners' factory, which, according to the petitioners, was valued at Rs.60 lakhs, as suggested in the report of the approved Valuer. The petitioners, therefore, requested the Tribunal that this should be treated as a part of pre-deposit and the appeals be heard on merits. The Tribunal, however, rejected such contention on the ground that mere attachment of property cannot be equated as pre-deposit.
3. Be that as it may, the Department eventually auctioned the properties and recovered approximately Rs.85 lakhs through such auction. On the premise that the petitioners' earlier deposit of Rs.16 lakhs under various challans in the year 2004-2005 were pending with the Department and fresh receipt of Rs.85 lakhs by way of sale of the petitioners' properties would cover the entire pre-deposit of rupees one crore, the petitioners once again approached the Tribunal and requested that the appeals be now taken up and heard on merits. The Tribunal refused to hear and dismissed such application Page 2 of 5 HC-NIC Page 2 of 5 Created On Tue Dec 08 01:38:42 IST 2015 C/SCA/14229/2015 JUDGMENT by the impugned order, and hence this petition.
4. Learned counsel Mr.Devan Parikh for the petitioners submitted that all along the petitioners had pleaded total inability to make good the pre-deposit. The petitioners had urged the Department to sell the attached properties and appropriate sale proceeds towards the pre-deposit requirement. If this was done timely, the petitioners could have pursued the appeals on merit. In any case, by efflux of time, the petitioners could not be denied the opportunity to argue the appeals on merits.
5. Learned counsel Mr.Ravani for the Department did not dispute that auction of the petitioners' immovable properties fetched close to Rs.85 lakhs by way of sale proceeds.
6. It can thus be seen that by now the Department has a total amount in excess of rupees one crore from two different sources: Rs.16 lakhs by way of deposit previously made by the petitioners and Rs.85 lakhs (approximately) by way sale proceeds of the petitioners' immovable properties. This must be seen in light of the petitioners' stand from the outset that the petitioners were facing acute financial crunch due to which they failed to deposit rupees one crore pre-deposit and the Department may sell their attached properties so that the petitioners' pre-deposit requirement can be satisfied.
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C/SCA/14229/2015 JUDGMENT
7. In case of Kiritkumar Jawaharlal Shah v. Union of India reported in 2014 (304) ELT 641, the Supreme Court had granted permission to pursue appeal on merits even when it was seen that the requirement of pre-deposit was satisfied after a long delay. Division of this Court, likewise, in Priya Dyers v. Commissioner of Central Excise reported in 2014 (305) ELT 504 observed that, for want of fulfilling the requirement of pre-deposit, the assessee's right of statutory appeal would get destroyed and the decision adverse to him would get confirmed without decision on merits. It was observed that the Court should take a relaxed view of belated compliance of requirement of pre-deposit provided there is any explanation for the delay. Similar view is expressed in Ramji Board & Paper Mills Pvt. Ltd. v. Commissioner of Central Excise & Customs, Daman reported in 2014 (306) ELT 190.
8. In the result, the impugned order of the Tribunal dated 11.06.2015 is set aside. Both the appeals of the petitioners are restored to file and may be heard on merits. The total amount with the Department would be retained by way of pre-deposit and would be governed by the ultimate outcome of the appeals by the Tribunal. Petition is disposed of accordingly. Direct service permitted.
(AKIL KURESHI, J.)
(MOHINDER PAL, J.)
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