MOHAMED ALI Vs. COMMISSIONER OF SERVICE TAX

JUDGEMENT

(1.) Petitioner had filed an appeal before respondent no.1 challenging the order passed by respondent no.2 in OIO NO.32/2021-22-SD-8 dtd. 30/11/2021. Petitioner to maintain the said appeal was required to comply with the mandatory pre-deposit as per the provisions of Sec. 35F of the Central Excise Act, 1944 and Sec. 83 of the Finance Act, 1994. Accordingly, the petitioner was advised to deposit the applicable pre-deposit i.e. 7.5% of the duty demanded. However, for reasons beyond his control, the petitioner was not in a position to do so within the time stipulated. Hence, the appeal was dismissed without going into the merits of the case. Aggrieved by the same, the instant writ petition is filed.

(2.) The case of the petitioner is that at the time of filing his returns instead of showing the commodities sold under the category of sale of goods, the same is mistakenly shown as sale of service because of which the authorities had imposed applicable service tax which was challenged by way of an appeal. It is contended by the learned counsel for the petitioner that the petitioner has good case on merits and that the petitioner has deposited the required mandatory pre-deposit at the time of preferring the appeal belatedly. Hence, it is submitted that in the interest of justice, the petitioner be given an opportunity to appear before respondent no.1 and canvass his case.

(3.) Learned counsel for the respondents does not dispute the fact that the impugned order has been passed solely on the ground that necessary pre-deposit has not been made and respondent no.1 has not examined the case on merits. However, he submits that there is no error in the impugned order and respondent no.1 has no discretion to waive the mandatory pre-deposit and prays for dismissal of the writ petition.