Sharafat Ali Contractor @APPELLANT @Hash Commissioner of CGST-Dehradun @RESPONDENT

Somesh Arora, J

Heard both sides.

The grievance of the appellant is that they duly made the pre-deposit at the stage of appeal before Commissioner (Appeals). But the ld. Commissioner (Appeals) decided the matter without affording the opportunity to furnish the proof of deposit which was available with them and which is part of the appeal memo.

Ld. AR though agreed that 7.5% was paid but also pointed out that the same was not paid prior to filing of appeal as is the statutory requirement under section 35F of the Act and he seeks to rely upon the decision of Principal Bench, Court No.4 of Single Member Final Order No.58737/2024 in the matter of M/s. Naveen Kumar vs. Commissioner, CGST, Dehradun wherein the ld. Member (Judicial) under the similar circumstances held that the appeal was not maintainable if the deposit was not made at the time of filing the appeal before the Commissioner (Appeals), since the obligation was the statutory requirement. He, however, appreciating the current position agreed that the party at this stage has not only deposited 7.5% as required to be deposited before Commissioner (Appeals) but also additional 2.5% to maintain the appeal before this Tribunal. The ld. Counsel for the appellant seeks to rely in rebuttal on the decisions of division bench in the matter of Nyati Hotels & Resorts Pvt. Ltd. vs. Commissioner of Central Excise, Pune-III reported in 2018 (364) ELT 1081 (Tri.-Mumbai) in which on pre-deposit having been made after filing of appeal, it was decided that once appeal memo has been filed within time limit then late pre-deposit will not affect the maintainability of the appeal. He also seeks to rely upon the decision of Sumat Gupta & Co. vs. Union of India reported in (2024) 18 CENTAX 267 (P & H) dated 23.04.2024 in which the Hon’ble High Court decided that merely because pre-deposit has not been submitted at the time of filing of appeal it cannot be said that pre-deposit cannot be made after filing of appeal. Once pre-deposit has been made and the same is appropriated, the appeal of assessee could not have been rejected.

This Court finds that the decision quoted by ld. AR did not have the benefit of the decisions quoted by the ld. Counsel. Therefore, this Court is of the view that the decision of Division Bench as well as Hon’ble Punjab & Haryana High Court will prevail in any case. The appeal before this Tribunal has been filed after making the requisite pre-deposit as per statute and the same therefore is maintainable before this Tribunal and since this Tribunal has power to give any directions, therefore this Court directs appeal to be considered by the ld. Commissioner (Appeals) and it should decide the same on merits. Appeal is therefore, allowed with above direction. Matter is remanded to Commissioner (Appeals) to pass a reasoned order. Appeal is allowed by way of remand.

[Dictated and Pronounced in the open Court]