Case Law Details
G.S. Promoters Pvt. Ltd Vs Commissioner Of Central Excise And CGST (Delhi High court)
The petitioner has filed the present petition, inter alia, seeking waiver of pre-deposit of 7.5% of duty for maintaining an appeal against the order-in-original dated 26.11.2021, passed by the Commissioner, Adjudication, Central Tax, GST, Delhi East.
Court is unable to accept that the petitioner can set off its obligation to make a pre-deposit against its claim for the refund of CENVAT credit. However, we find merit in the contention that the petitioner’s remedy of an appeal would be rendered illusory in the given circumstances where the petitioner does not have the liquid funds to make the said deposit.
In the given circumstances, we consider it apposite to direct that if the petitioner deposits an amount equivalent to 2.5% of its liability, the petitioner’s appeal against the order in original would not be rejected solely for want of the requisite pre-deposit.
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
1. The petitioner has filed the present petition, inter alia, seeking waiver of pre-deposit of 7.5% of duty for maintaining an appeal against the order-in-original dated 26.11.2021, passed by the Commissioner, Adjudication, Central Tax, GST, Delhi East.
2. The petitioner claims that the interest of the revenue is fully protected as the petitioner is entitled to the refund of CENVAT credit which has not been processed yet.
3. The learned counsel for the petitioner submits that the demand has been raised on the erroneous premise that the petitioner could not avail the benefit of abatement as it had availed of certain CENVAT credits.
4. Learned Counsel for the petitioner submits that the said issue has been decided favourably in the case of petitioner’s sister concern, M/s GR Realcon Private Limited. He also referred to the order in original dated 16.12.2022, passed by the Additional Commissioner, Adjudication, Delhi East, in the case of M/s GR Realcon Private Limited in support of the said contention.
5. He submits that the petitioner has a strong case on merits. However, its remedy of appeal is rendered illusory as the petitioner is not in a position to make the pre-deposit of 7.5% of the demand.
6. He submits that the proceedings under Real Estate (Regulation & Development) Act, 2016 (“RERA”), has commenced against the petitioner and the petitioner does not have the adequate funds to make the pre-deposit. It is also contended on behalf of the petitioner that the CENVAT credits available may be directed to be appropriated to discharge the obligation of making the pre-deposit for maintaining an appeal against the order-in-original dated 26.11.2021.
7. This Court is unable to accept that the petitioner can set off its obligation to make a pre-deposit against its claim for the refund of CENVAT credit. However, we find merit in the contention that the petitioner’s remedy of an appeal would be rendered illusory in the given circumstances where the petitioner does not have the liquid funds to make the said deposit.
8. After some arguments, learned Counsel appearing for the petitioner states that the petitioner would make a deposit equal 2.5% of the liability instead of 7.5% to maintain the appeal against the order-in-original dated 26.11.2021.
9. In the given circumstances, we consider it apposite to direct that if the petitioner deposits an amount equivalent to 2.5% of its liability, the petitioner’s appeal against the order in original would not be rejected solely for want of the requisite pre-deposit.
10. In so far as the merits of the case are concerned, we are refraining from making any observations in that regard.
11. The petition is disposed of in the aforesaid terms.
12. All pending applications also stand disposed of.
