Page No.# 1/4 GAHC010265952024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/6670/2024 SHRI DIBYAJIT BORA S/O LATE MINA RAM BORA, RESIDENT OF DONA PRESIDENCY, A7, BLOCK A, TYBE B, VIP ROAD GUWAHATI 781036 VERSUS THE UNION OF INDIA AND 4 ORS REPRESENTED BY BY THE SECRETARY OF GOVERMENT OF INDIA , MINISTRY OF FINANCE DEPARTMENT OF REVENUE, ROOM NO. 66A, NORTH BLOCK NEW DELHI 110001. 2:THE COMMISSIONER CENTRAL GOODS AND SERVICE TAX MILAN NAGAR LANE F PO CR BUILDING DIBRUGARH 786003 3:THE COMMISSIONER (APPEALS) CGST CENTRAL EXCISE AND SERVICE TAX AND CUSTOMS GST BHAWAN KEDAR ROAD GUWAHATI ASSAM 4:THE ADDL COMMISSIONER CENTRAL GOODS AND SERVICE TAX MILAN NAGAR LANE F PO CR BUILDING Page No.# 2/4 DIBRUGARH 786003 5:THE SUPERINTENDENT CENTRAL GOODS AND SERVICE TAX SIVASAGAR RANGE SIBSAGAR ASSA Advocate for the Petitioner : MR. R S MISHRA, MS. N PARASAR,MR. A K GUPTA Advocate for the Respondent : DY.S.G.I., SC, GST BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA ORDER Date : 08.01.2025 Heard Mr. R.S. Mishra, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned Standing Counsel, GST for the respondent. This writ petition is directed against the order dated 22.08.2024 passed by the Commissioner (Appeals), CGST, Central Excise and Customs, Guwahati, where by the appeal preferred by the petitioner in respect of the assessment order passed came to be dismissed on the ground of non-fulfillment on the mandatory condition under Section 35F of the Central Excise Act, 1944. The learned counsel for the petitioner submits that in terms of Section 35F of the Central Excise Act, 1944 petitioner was required to make a pre-deposit of 7.5% of the disputed tax amount. The same could not however be made due to non- availability of the user ID and Password. Subsequently, in the absence of 20,000/- being made in the interim order dated 22.08.2024 was passed by the Commissioner (Appeals), CGST, Central Excise and Customs, Guwahati rejecting the appeal on the ground of non-fulfillment of the requirement of the Section 35F of the Central Excise Act, 1944. It is submitted that subsequent to the order passed Page No.# 3/4 by the appellate authority, the petitioner was assailed the user ID and Password and without further delay he take it immediately pre-deposit of the 7.5% of the disputed tax amount vide the Challan No. 20240903131001438962 dated 03.09.2024. The learned counsel for the petitioner therefore submits that the impugned order be interfere to be set aside as no decision on the merit appeal has been passed and the same was rejected on the ground of the non-fulfillment of under Section 35F of the Central Excise Act, 1944. Mr. S.C. Keyal, learned Standing Counsel, GST fairly submits that since the amount has subsequently been deposited at the department, if the court remands the matter to department can passed appropriate order on the appeal filed by the petitioner and disposed of on merit. Having heard learned counsel for the parties perusal of the pleading of the court. This court is of the view that the impugned order dated 22.08.2024 passed by the Commissioner (Appeals), CGST, Central Excise and Customs, Guwahati rejected the appeal preferred by the petitioner only on the ground that mandatory provisions under Section 35F could not be fulfilled and the no decision was rendered merits of the case. It is also not disputed that pursuant to order being filed the petitioner already made pre-deposit as required under Section 35F vide the Challan No. 20240903131001438962 dated 03.09.2024. The learned counsel for the GST fairly submits that the amount has been deposited. Under such circumstances the Commissioner (Appeals) being the first appellate authority under the statue. It is incumbent of the said authority to decide the appeal on the basis of merits and passed appropriate orders. The failure of the petitioner deposit made under Section 35F was an account of non issuance of user ID and Password in the absence of which the appeal came to be rejected. Page No.# 4/4 However, the pursuant to the order being passed by the appellate authority the petitioner was aside the user ID and Password, thereafter, let to pre-deposit of 7.5% of the disputed tax demanded without further delay. In that view of the matter, the impugned order dated 22.08.2024 passed by the Commissioner (Appeals), CGST, Central Excise and Customs, Guwahati thereby is set aside and the matter is remanded back to the competent authority to decide the matter on basis of merits upon giving an opportunity of being heard to the writ petitioner, the entire exercise be completed within the period of 60 days from the date of receipt of the certified copies of the order. The writ petition accordingly stands disposed of. JUDGE Comparing Assistant