Payment of pre-deposit of Excise and Service Tax through Form GST DRC-03 – HC direct CBIC to issue guideline

Sodexo India Services Pvt. Ltd Vs Union of India (Bombay High Court)

1. Petitioner is impugning four orders all dated 13^th April 2022 passed by respondent no.3 in the appeals that petitioner had filed.

2 Petitioner had, as required under Section 85 of the Finance Act, 1994 read with Section 35F of the Central Excise Act, 1944, made a pre-deposit in cash through Form GST DRC-03. The appeals were accepted and registered and appeal numbers were allotted. Thereafter, petitioner was called for personal hearing and petitioner made submissions on merits of the matter.

3 To petitioner’s surprise, all the appeals came to be dismissed without going into the merits of the submissions made by petitioner only on the ground that the pre-deposit made by petitioner while filing the appeal was improper. According to respondent no.3, petitioners could not have made the deposit in the manner they made and, therefore, should be construed to have not complied with the precondition of pre-deposit. Strangely in the order respondent no.3 does not state how the deposit should have been made. According to petitioner, even during the personal hearing respondent no.3 was totally silent and never brought to the notice of petitioner as to how the deposit should have been made.

4 Based on the directions passed by this Court on 26^th September 2022, Mr. Dhirendra Lal, Commissioner (Appeals), who had passed the order impugned in the petition, has filed an affidavit dated 29^th September 2022. The said Mr. Lal has expressed, in effect, his helplessness since according to him the law as well as the circulars issued does not permit pre-deposit in the manner made by petitioner and even in two cases of petitioner, where he had accepted payment of pre-deposit as made by petitioner, was due to oversight. According to Mr. Lal the proceedings under Central Excise Act, 1944 or Finance Act, 1994 and CGST are separate proceedings and, therefore, payment method used under the old laws, i.e., Central Excise Act, 1944 and Finance Act, 1994 cannot be used for payment under CGST Act. Mr. Lal states that the tools available under the CGST laws may be utilised for making payment under the CGST laws.

Please become a Premium member. If you are already a Premium member, login here to access the full content.