M/S Shree Marwal Sewashram Through Its Authorized Signatory Shri Sanjay Marwal vs. Office Of Commissioner Customs Central Excise And Central Tax

WP/1667/2019HC Madhya Pradesh06 December 2022Author: HON'BLE THE CHIEF JUSTICE3 pages

For Petitioner: Bharat Ashok Chitale

AI SummaryDismissed

What did the High Court hold?

The High Court held that the prayers sought by the petitioner could not be considered because the appeal itself did not exist for consideration. The Court noted that the appeal filed by the petitioner before the CESTAT had already been dismissed, and that order had attained finality. Consequently, the question of entertaining the present writ petition, either on facts or law, did not arise. The Court found no good ground to entertain the petition and accordingly dismissed it. The specific issue of liability under the Central Excise Act and the quashment of proceedings were rendered moot by the dismissal of the appeal. The alternative prayer concerning the CESTAT's order was also dismissed as the underlying appeal was no longer pending.

What were the facts?

The petitioner, M/s Shree Marwal Sewashram, is challenging an adjudication order dated 27.02.2017 passed by the Principal Commissioner, Central Excise, Customs and Service Tax, Indore. The petitioner also sought to quash impugned notices and demands. Alternatively, they sought to quash the CESTAT order dated 02.08.2017, which rejected their application to file an appeal without pre-deposit, and requested the CESTAT to hear the appeal without pre-deposit and condone the delay. The petitioner's earlier writ petition (W.P. No.18996 of 2017) challenging a previous order was dismissed on 22.03.2018. The current writ petition was filed thereafter. The CESTAT had previously dismissed the petitioner's appeal for non-compliance with the mandatory pre-deposit requirement under Section 35F of the Central Excise Act, 1944.

What were the issues?

1. Whether the petitioner has any liability under the Central Excise Act in respect of the adjudication order dated 27.02.2017 passed by the Principal Commissioner, Central Excise, Customs and Service Tax, Indore. 2. Whether the proceedings and demands made under the impugned notices, letters, and replies by the respondents should be quashed. 3. Whether the order of CESTAT dated 02.08.2017, rejecting the petitioner's application to file an appeal without pre-deposit, should be quashed, and if the CESTAT should be directed to hear the appeal without pre-deposit and condone the delay. Assessee's Contentions: The petitioner contended that they have no liability under the Central Excise Act and sought quashment of proceedings and demands. Alternatively, they argued that the CESTAT's order rejecting their appeal without pre-deposit was erroneous and sought to have it quashed, with a direction for the appeal to be heard without pre-deposit and with condonation of delay. Revenue's Contentions: The judgment does not record specific contentions from the revenue. However, the High Court's reasoning implies that the revenue's position, as reflected in the CESTAT's order, was that the pre-deposit was mandatory.

Which sections of the Income-tax Act were involved?

Section 35F

AI-generated summary — verify with the full judgment below

Before: HONBLE SHRI JUSTICE RAVI MALIMATH, & HONBLE SHRI JUSTICE VIJAY KUMAR SHUKLA

The petitioner seeks the following reliefs:-

To kindly issue a declaration that the petitioner has no liability under the Central Excise Act in respect of the adjudication Order dated 27.02.2017 passed by the Principal Commissioner (respondent No.1), Central Excise, Customs and Service Tax, Indore.

To kindly issue order of Quashment/annulments of proceedings and demands made under the Impugned Notices, Letters and Replies by the respondents.

In case, the reliefs 7.1 and 7.2 claimed above are not granted, alternatively the order of CESTAT dated 02.08.2017 rejecting petitioner's application to file appeal without pre-deposit be quashed and the CESTAT be directed to hear the appeal of the petitioner without the payment of pre-deposit and by condoning the delay in filing such appeal.

Any other direction or order this Hon'ble Court may deem just and proper in facts and circumstances of the present case may be issued. In the earlier round of litigation, a final order dated 02.08.2017 was passed by the CESTAT by which the appeal of the petitioner was dismissed on the ground that the pre-deposit was not made i.e. the mandatory condition under Section 35F of the Central and Excise Act, 1944. The same was challenged in W.P. No.18996 of 2017 wherein, vide order dated 22.03.2018, the writ petition was dismissed. Thereafter, the instant petition was filed. The prayer sought for by the petitioner herein, in our considered view, cannot even be considered in view of the fact that the appeal itself does not exist for consideration. Therefore, the prayer for a declaration that the petitioner has no liability under the Central Excise Act, to quash the proceedings or 2 (RAVI MALIMATH) CHIEF JUSTICE (VIJAY KUMAR SHUKLA) JUDGE rejecting the petitioner's application to file the appeal without pre-deposit would not arise for consideration at all. When the appeal filed by him before the CESTAT has already been dismissed and the said order has attained finality the question of entertaining this petition, therefore, would not arise for consideration either on facts or on law. Hence, we find no good ground to entertain this petition. The same is dismissed. soumya

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