Central Arya Road Transport Vs Principal Commissioner of CGST And Central Excise (Calcutta High Court)
Calcutta High Court directed respondent to file affidavit to decide validity of the instruction no. CBIC-240137/14/2022- Service Tax dated 28.10.2022 with respect to pre-deposit payment mode.
Facts- This appeal is directed against the order passed by the learned Tribunal rejecting the appeal filed by the appellant on the ground that the pre deposit has not been paid by cash but has been paid through the GST DRC-03. The substantial question raised by the appellant is that i) Whether the Instruction No.CBIC-240137/14/2022-Service Tax Section-CBEC dated 28.10.2022 issued by Central Board of Indirect Taxes and Customs with respect to pre-deposit payment method for cases pertaining to central excise and service tax wherein it was stated that form GST DRC-03 is not a valid mode of payment for making pre-deposits is infructuous as there has been no rationale provided by the CBIC for such decision.
Conclusion- Held that to decide this substantial question of law the Court will have to go into the aspect as to whether the circular issued by the CBIC is sustainable. This decision can be taken only after an affidavit in opposition is filed by the appropriate authority. Therefore, we direct the respondent or any other appropriate authority having jurisdiction to file affidavit in opposition in which the aspect regarding validity of the instruction by the CBIC dated 28.10.2022 should be dealt with. Since the appellant has already deposited the amount required therefore, the form GST DRC-03 and the said amount has not been reversed by the department till date, the same shall be retained as deposit in lieu of payment of cash as towards the pre deposit and the Court will take a decision on the substantial questions of law which have been raised.
