Page No.# 1/8 GAHC010217222024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5689/2024 MS DONA FOOD BEVERAGES PRIVATE LIMITED HAVING ITS REGD. OFFICE AT -202, SRI KRISHNA , OPP. LAXMI INDUSTRIAL ESTATE, NEW LINK ROAD, ANDHERI (W), MUMBAI-400053. HAVING ITS ESTABLISHMENT AT 4TH FLOOR, DONA PLANET, ABC, G.S ROAD, GUWAHATI-05, REP. BY ITS ONE OF THE DIRECTORS ABANI DAS VERSUS THE UNION OF INDIA REP. BY THE SECRETARY TO THE MINISTRY OF FINANCE, NEW DELHI-01 2:THE CHIEF COMMISSIONER CGST CENTRAL EXCISE AND CUSTOMS GUWAHATI ZONE GST BHAWAN KEDAR ROAD MACHKHOWA GUWAHATI-01 3:THE COMMISSIONER (APPEALS) CGST CENTRAL EXCISE AND CUSTOMS GUWAHATI ZONE GST BHAWAN KEDAR ROAD MACHKHOWA GUWAHATI-01 4:THE ADDITIONAL COMMISSIONER Page No.# 2/8 O/O THE COMMISSIONER GST AND CENTRAL EXCISE COMMISSIONERATE GUWAHATI GST BHAWAN KEDAR ROAD MACHKHOWA GUWAHATI-01 5:THE JOINT COMMISSIONER CGST O/O THE COMMISSIONER OF CGST MUMBAI WEST MAHAVIR JAIN VIDYALAYA C.D BURFIWALA ROAD JUHU LANE ANDHERI WEST MUMBAI PIN-40005 B E F O R E HON’BLE MR. JUSTICE DEVASHIS BARUAH Advocates for the petitioner(s) : Mr. M Nath, Senior Advocate Mr. DP Borah Advocates for the respondent(s) : Mr. SC Keyal, Senior Advocate Standing Counsel GST Ms. P Das Date on which Judgment is reserved : NA Date of Pronouncement of Judgment : 18.06.2026 Page No.# 3/8 Whether the Pronouncement is of the : Yes Operative Part of the Judgment Whether the Full Judgment has been : NA Pronounced JUDGMENT & ORDER(ORAL) Heard Mr. M Nath, the learned Senior Counsel assisted by Mr. DP Borah, the learned counsel appearing on behalf of the petitioner. Also heard Mr. SC Keyal, the learned Senior Counsel as well as the learned Standing Counsel GST, assisted by Ms. P Das, the learned counsel. 2. The present writ petition has been filed by the petitioner challenging the order dated 30.08.2024 passed by the respondent No.3, whereby the Appeal so filed by the petitioner was dismissed, and further the petitioner has also assailed the show cause notice dated 21.10.2021 and the order dated 12.07.2022 passed by the respondent No.4. 3. At the outset, it is very pertinent to take note of that the petitioner being aggrieved by the order dated 12.07.2022, had approached the Appellate Authority, i.e. the Commissioner (Appeals) Page No.# 4/8 challenging the said order dated 12.07.2022, as well as the issuance of the show cause notice dated 21.10.2021. 4. In the backdrop of the above, let this Court now take note of the reasons why the Appellate Authority had passed the impugned order dated 30.08.2024. The Appellate Authority had dismissed the Appeal for 2(two) reasons: First, that the impugned order was passed on 12.07.2022, and an appeal could have been filed in terms of Section 85 of the Finance Act, 1994 within a period of 2(two) months, i.e. on or before 12.09.2022, and the power which was there with the Appellate Authority to condone could not have been more than 1(one) month, i.e. 12.10.2022. However, as the appeal was filed on 04.06.2024, the appeal could not have been decided by the respondent No.3, who is the Appellate Authority. The second reason for dismissal of the Appeal was on the ground of not making the pre-deposit of 7.5% of the duty and penalty which are in dispute. 5. This Court had heard the learned counsels appearing on behalf of the parties and had perused the materials on record. 6. It is the specific submission of Mr. M. Nath, the learned Senior Page No.# 5/8 Counsel appearing on behalf of the petitioner that the petitioner was never issued a show cause notice, and it was only in the year 2024 when the petitioner had visited the Office of the respondent No.4 that the order dated 12.07.2022 was furnished to him along with the show cause notice and an envelope which is enclosed as Annexure-10 to the writ petition. It is under such circumstances the petitioner had approached the Appellate Authority by filing an Appeal. 7. The learned Senior Counsel for the petitioner further submitted that the issue which is the subject matter of the impugned order dated 12.07.2022 passed by the respondent No.4 has already been dealt with by the Joint Commissioner, CGST, Mumbai West as would be apparent from the order dated 25.08.2022. The learned Senior Counsel, therefore, submitted that this very aspect was not taken into consideration by the respondent No.4 in passing the impugned order dated 12.07.2022, and, therefore, the petitioner be exempted from payment of the pre-deposit of 7.5% of the duty and penalty. 8. I have also heard Mr. SC Keyal, the learned Senior Counsel appearing on behalf of the respondents, who submitted that the submissions made by the learned Senior Counsel appearing on behalf of the petitioner relates to questions of facts, which can be dealt with by the Appellate Authority. Mr. SC Keyal, the learned Senior counsel, Page No.# 6/8 therefore, submitted that the respondent authorities could not insist on the question of limitation. However, the learned Senior Counsel for the respondents submitted that Section 35F of Central Excise Act, 1944 (for short, the Act of 1944), having been upheld by the Supreme Court in various decisions, therefore, the question of exemption from payment of the pre-deposit cannot be permitted. 9. This Court has given an anxious consideration to the respective submissions and has also perused the materials on record. It is the opinion of this Court that taking into account the facts involved to the effect that the petitioner herein had no knowledge about the show cause notice as well as the impugned order dated 12.07.2022, which the petitioner came to learn only on 26.04.2024, the period of limitation ought to have been counted from the date of the knowledge of the petitioner, inasmuch as the said order dated 12.07.2022 was passed ex-parte. 10. Considering the above, this Court, in exercise of the powers under Articles 226 of the Constitution, condones the delay in preferring the Appeal before the respondent No.3, and the appeal so filed on 04.06.2024 by the petitioner before the respondent No.3 shall be construed as an appeal filed within the period of limitation. Page No.# 7/8 11. Insofar as the pre-deposit of 7.5% of the duty, or duty and penalty, which are in dispute, it being the mandate of Section 35F of the Act of 1944, read with the Finance Act of 1994, the petitioner has to deposit the said amount for the purpose of consideration of the Appeal on merits. 12. The petitioner is given 30(thirty) days time to deposit the said amount from today. 13. In view of the above, the instant writ petition, therefore, stands disposed of with the following observations and directions: (i). The order dated 30.08.2024 passed by the respondent No.3, i.e. the Commissioner (Appeals) CGST, Central Excise & Customs, Guwahati, is set aside and quashed. (ii). The Appeal filed before the Commissioner (Appeals) CGST, Central Excise & Customs, Guwahati, i.e. the respondent No.3, bearing Appeal No.305/GHY(A)/COM/ST/GHY/2024 is restored to the file of the Commissioner (Appeals) CGST, Central Excise & Customs, Guwahati. (iii). The petitioner is granted 30(thirty) days time for deposit of the pre-deposit in terms with Section 35F of the Act of 1944. (iv). For a period of 30(thirty) days from today, the interim order Page No.# 8/8 passed in the instant proceedings shall continue. Subsequent thereto, the question of stay of the impugned demand made on the basis of the order dated 12.07.2022 by the respondent No.4 shall be subject to such decisions of the Commissioner (Appeals), i.e. the respondent No.3. (v). No costs. JUDGE Comparing Assistant