D.B. WRIT MISC. APPLN. No.212/2013. Padmawati Communication Vs.Commissioner (Appeals)-II, Central Excise (Alongwith one connected matter) // 1 // 1 D.B. WRIT MISC. APPLN. No.212/2013. Padmawati Communication Vs. Commissioner (Appeals)-II, Central Excise .. 2 D.B. WRIT MISC. APPLN. No.169/2013. Padmawati Communication Vs. Commissioner (Appeals)-II, Central Excise & Ors. Date of Order ::
4. h December 2013. HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Dinesh Mehta, for the applicant. Mr. Vinit Kumar Mathur ]. Mr. Ankur Mathur ]. Mr. Falgun Buch ]., for the respondents. <<>> BY THE COURT: By way of these two miscellaneous applications, the petitiioner of D.B. Civil Writ Petition No.2721/2013 seeks modification of the order dated 22.07.2013 as also other apprpriate directions, essentially for the purpose of consideration of its appeal on merits by the appellate authority. The background in which these applications have been filed could be noticed as follows: By the Order-in-Original No.35/ST/JP-II/2012/ADC dated 24.02.2012, the Additional Commissioner, Central Excise II, Jaipur confirmed the demand of Rs.41,64,840/- against the petitioner-applicant towards service tax and also ordered recovery of interest and penalty. D.B. WRIT MISC. APPLN. No.212/2013. Padmawati Communication Vs.Commissioner (Appeals)-II, Central Excise (Alongwith one connected matter) // 2 // The petitioner-applicant preferred an appeal and made the prayer for waiver of the condition of pre-deposit and for stay against the recovery. By the order dated 11.02.2013, the Commissioner (Appeals) directed the applicant to deposit an amount of Rs. 25,00,000/- with the stipulations that in case of failure to deposit, the appeal would be liable to be rejected and but upon compliance, recovery of the remaining amount under the order in question would remain stayed. The said order dated 11.02.2013 was sought to be questioned by the applicant in the writ petition (CWP No.2721/2013). In the said writ petition, notices were ordered to be issued on 15.03.2013. Then, on 10.04.2013, the learned counsel for the petitioner was directed to supply one set of paper book to the learned counsel appearing for the respondent and the matter was adjourned. Then, on 22.04.2013, and again on 06.05.2013, time was taken on behalf of the respondents for filing reply. Thereafter, on 22.05.2013 , it was given out on behalf of the respondents that the reply was being filed that day. Taking note of the submissions so made, the matter was posted in the month of July, 2013 while giving liberty to the applicant to file rejoinder in the meantime. Thereafter, on 22.07.2013, this Court, after hearing the learned counsel for the parties found no merit in D.B. WRIT MISC. APPLN. No.212/2013. Padmawati Communication Vs.Commissioner (Appeals)-II, Central Excise (Alongwith one connected matter) // 3 // the writ petition and proceeded to dismiss the same. However, in the facts and circumstances of the case, this Court granted four weeks’ time to the applicant to deposit the amount in question. The order dated 22.07.2013, in its entirety, reads as under: “Heard finally with the consent of the learned counsel for the parties.
2. The writ petition is directed against the interim order dated 11th February, 2013 (Annexure-14), whereby Commissioner (Appeals-II) Custom & Central Excise, Jaipur, disposed of the stay petition of the petitioner by directing him to deposit Rs. 25 lakhs as service tax within two weeks of the receipt of the order, failing which the appeal would be liable for rejection for non-compliance of the provisions of Section 35F of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994.
3. Learned counsel for the petitioner has submitted that there is strong prima facie case in favour of the petitioner, therefore, the direction given by Appellate Authority to deposit Rs. 25 lakhs is unreasonable. He has submitted that the entire amount of demand should have been stayed during the pendency of the appeal by the Appellate Authority.
4. Per contra, Shri Vineet Kumar Mathur, learned counsel appearing for the respondent supported the impugned order and submitted that this was a case where the demand of service tax, penalty and interest was more than Rs. 1,23,00,000/-, but out of this amount, the Appellate Authority has directed to deposit only Rs. 25 lakhs. In these circumstances, no interference should be made by this Court in the impugned order.
5. We have considered the submissions of the learned counsel for the parties.
6. The Assessing Officer has passed an order against the petitioner directing him to deposit service tax of Rs. 41,64,840/- along with interest and also the penalty. Being aggrieved with the order in original, the petitioner preferred an appeal along with stay petition. The Appellate Authority disposed of the stay petition as mentioned above vide order dated 11th February, 2013. Being aggrieved with the same, the petitioner has preferred this writ petition. From the impugned order, it appears that there is a demand of D.B. WRIT MISC. APPLN. No.212/2013. Padmawati Communication Vs.Commissioner (Appeals)-II, Central Excise (Alongwith one connected matter) // 4 // service tax against the petitioner of Rs. 41,64,840/-. The same amount has been levied as interest and in addition to it, penalty of the same has also been levied. In these circumstances, we find that there is a total demand of more than Rs. 1,23,00,000/- against the petitioner and out of which, the Appellate Authority has directed the petitioner to deposit only a sum of Rs. 25 lakhs, which cannot be said to be unreasonable in any manner whatsoever.
7. So far as the submission of the learned counsel for the petitioner about prima facie case is concerned, it is relevant to mention here that it is a settled law that in the matter of money, particularly, the tax matters, there cannot be irreparable injury. If the petitioner’s appeal is allowed, the amount would be refunded to the petitioner with interest by the department at the rate prescribed under law.
8. In the circumstances, we find no merit in the writ petition and the same is accordingly, dismissed.
9. Learned counsel for the petitioner prays for extension of time to deposit the amount as the amount has not been deposited so far.
10. In the facts and circumstances of the case, we grant four weeks’ time from today to the petitioner to deposit the amount in question with the department and in case, the amount is deposited, as directed, the Appellate Authority shall hear and decide the appeal within a period of two months from the date of deposit of amount.
11. Stay application No.2048/2013 also stands disposed of.”
. Thereafter, the petitioner-applicant filed the first Miscellaneous Application (No.169/2013) on 01.08.2013 pointing out that at the time of passing of the order on 22.07.2013, it was not in the knowledge of the applicant nor was it informed on behalf of the respondents that the appeal of the applicant with the Commissioner (Appeals) had purportedly been dismissed on 07.06.2013, i.e., even before passing of the order by this Court. According to the applicant, D.B. WRIT MISC. APPLN. No.212/2013. Padmawati Communication Vs.Commissioner (Appeals)-II, Central Excise (Alongwith one connected matter) // 5 // this fact came to its notice only when the Superintendent, Central Excise visited the premises on 26.07.2013 and served the said order dated 07.06.2013. The applicant has submitted that the rejection of appeal was not warranted in this matter and had the said order been served upon it, appropriate submissions would have been made before the Court but it was neither proper nor fair on the part of the department that a copy of the said order was not served on the applicant before disposal of the writ petition. It is also submitted that even dismissal of the appeal was not warranted; and if the appellate authority found that the amount had not been deposited, it could have adjourned the matter sine die. Though the said Miscellaneous Application has remained pending but the applicant has now filed another Miscellaneous Application (No.212/2013) stating, inter alia, that it had managed the amount of Rs.25 lacs and deposited the same with the respondents on 09.10.2013 by way of 5 challans of Rs. 5 lacs each. The applicant submits that the respondents are however, seeking to adopt coercive recovery proceedings and they deserve to be restrained from doing so; and the appeal deserves to be restored for consideration on merits. D.B. WRIT MISC. APPLN. No.212/2013. Padmawati Communication Vs.Commissioner (Appeals)-II, Central Excise (Alongwith one connected matter) // 6 // The respondents have filed a reply to this application with the submissions that the order passed by the Commissioner (Appeals) on 07.06.2013 was duly served on the applicant and the applicant, who had not deposited the amount within the stipulated time, deserves no indulgence. After having heard the learned counsel for the parties and having persused the material placed on record, we find that though there had been shortcomings on the part of both the parties but in the ultimate analysis, the cause of justice demands a consideration of the appeal on merits rather than to shunt the applicant out for some part of delay attributable to it and some part of technicalities that may otherwise operate. Going by the substance of the matter, apparent it is that the applicant was required to deposit an amount of Rs.25 lacs pursuant to the order dated 11.02.2013 within two weeks whereafter its appeal would have been considered on merits with stay over other recovery. The applicant chose to file the writ petition seeking to question the interim order so passed by the Commissioner (Appeals). In the said writ petition, notices were ordered to be issued and ultimately, the reply was filed on 22.05.2013 and the matter was adjourned to the month of July 2013. It sounds rather strange that thereafter, the appellate authority purportedly drew the order dated D.B. WRIT MISC. APPLN. No.212/2013. Padmawati Communication Vs.Commissioner (Appeals)-II, Central Excise (Alongwith one connected matter) // 7 // 30.05.2013 being Order-in-Appeal No.187(VC)ST/JPR-II/2013 but the said order was purportedly given the date “07.06.2013”. and then, was not served upon the applicant until 26.07.2013. Moreover, this order was not brought to the notice of the Court on the date of disposal of the writ petition, i.e., 22.07.2013. In our view, the respondents had not been discreet in this matter on several aspects. Be that as it may, the fact of the matter now remains that the applicant has indeed deposited the amount of Rs.25 lacs on 09.10.2013. Secondly, the appeal has not been dismissed on merits but has only been dismissed on account of default in not making the deposit of the amount of Rs.25 lacs. It is apparent that even while dismissing the writ petition, this Court had enlarged the time for making deposit at the request made on behalf of the petitioner-applicant and granted four weeks’ further time. Obviously, the anxiety of the Court was to ensure consideration of the appeal on merits upon the petitioner- applicant making the deposit. In the totality of peculiar and singular facts and circumstances of the case, we are of the view that the interest of justice shall be served if the applicant is put to the condition of depositing the entire principal amount towards the tax liability under the order impugned,i.e., a sum of D.B. WRIT MISC. APPLN. No.212/2013. Padmawati Communication Vs.Commissioner (Appeals)-II, Central Excise (Alongwith one connected matter) // 8 // Rs.41,64,840/-, of course, after adjustment of the amount already deposited; and with the directions for consideration of the appeal by the appellate authority on merits upon compliance by the applicant. Accordingly and in view of the above, these miscellaneous applications stand disposed of with the following directions and stipulations:- (i) The petitioner-applicant shall deposit an amount of Rs. 10,00,000/- (Rupees Ten Lacs) on or before 10.12.2013 with the respondents against the liability arising out of the Order-in- Original No.35/ST/JP-II/2012/ADC dated 24.02.2012; (ii) The petitioner-applicant shall further deposit an amount of Rs. 6,64,840/- (Rupees Six Lacs Sixty Four Thousand Eight Hundred Forty) on or before 31.12.2013 with the respondents against the liability arising out of the aforesaid Order-in- Original dated 24.02.2012; (iii) Upon the petitioner-applicant carrying out compliance of the requirements of paragraphs (i) and (ii) (supra), the questioned Order-in-Appeal No.187(VC)ST/JPR-II/2013 dated 30.05.2013/07.06.2013 shall stand annulled; and the appeal filed by the petitioner-applicant against the aforesaid Order-in-Original dated 24.02.2012 shall stand revived; (iv) Upon the petitioner-applicant reporting compliance to D.B. WRIT MISC. APPLN. No.212/2013. Padmawati Communication Vs.Commissioner (Appeals)-II, Central Excise (Alongwith one connected matter) // 9 // the appellate authority of the requirements of paragraphs (i) and (ii) (supra), and the appeal reviving pursuant to the directions in the foregoing paragraphs, the appellate authority shall put the petitioner-applicant to notice of the date of hearing and then, shall proceed to hear the appeal in accordance with law. In view of the directions foregoing and in the circumstances of the case, it is also considered appropriate and hence directed that until 31.12.2013, the respondents shall not adopt any coercive recovery proceedings against the petitioner-applicant; and upon the appeal reviving for consideration, in case of the petitioner-applicant carrying out compliance, any other coercive recovery proceedings shall remain stayed until final disposal of the appeal. (ARUN BHANSALI), J.
(DINESH MAHESHWARI), J.
/Mohan/ D.B. WRIT MISC. APPLN. No.212/2013. Padmawati Communication Vs.Commissioner (Appeals)-II, Central Excise (Alongwith one connected matter) // 10 // 2 D.B. WRIT MISC. APPLN. No.169/2013. Padmawati Communication Vs. Commissioner (Appeals)-II, Central Excise & Ors. .. Date of Order ::
4. h December 2013. HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Dinesh Mehta, for the applicant. Mr. Vinit Kumar Mathur ]. Mr. Ankur Mathur ]. Mr. Falgun Buch ]., for the respondents. <<>> This Misc. Application stands disposed of with the observations, requirements and stipulations [vide common order made in D.B. Writ Misc. Application No.212/2013].. (ARUN BHANSALI), J.
(DINESH MAHESHWARI), J.
/Mohan/