Dismissed

M/S Jal Mahal Resorts Private Ltd. v. Commissioner of Central Goods and Service Tax

Rajasthan HC14 Feb 2024EXCIA/9/2020

Case brief

AI extract

What is this about?

This division bench held that an appeal under Section 35G of the Central Excise Act, 1944, is not maintainable against an order dismissing an application for restoration of an appeal before the Appellate Tribunal, as it is not an order passed in appeal by the Tribunal. The appeal was dismissed as not maintainable, with liberty to approach other forums.

What did the court decide?

Appeal dismissed as not maintainable.

M/S Jal Mahal Resorts Private Ltd. Vs Commissioner of Central… — Income Tax | Rajasthan HC (2024)

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[2024:RJ-JP:7622-DB]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Central/excise Appeal No. 9/2020

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M/s Jal Mahal Resorts Private Ltd., 102, Hazrat Ali Nagar, Amer Road, Jaipur Rajasthan 302002 Through Its Authorized Person

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----Appellant

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Versus

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Commissioner Of Central Goods And Service Tax, Jaipur-I, Ncrb, Statue Circle, C-Scheme, Jaipur (Raj)

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----Respondent

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For Appellant(s) : Mr. Alok Kumar Kothari For Respondent(s) : Mr. Shivangshu Naval

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HON'BLE MR. JUSTICE AVNEESH JHINGAN HON'BLE MRS. JUSTICE SHUBHA MEHTA

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Order

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14/02/2024 AVNEESH JHINGAN, J(Oral):-

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This appeal is filed under Section 35G of the Central Excise Act, 1944 aggrieved of order dated 18.10.2019 passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi (for short, ‘Tribunal’) dismissing the application for restoration of the appeal.

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The brief facts are that during the financial year 2013-14, the appellant had deposited Service Tax on reverse charge basis for the legal services availed. The appellant claimed refund which was allowed on 26.02.2016. The appeal filed by the Department against sanctioning of refund was allowed by Commissioner (Appeals) Central Excise and Central Goods and Service Tax, Jaipur vide order dated 07.06.2018. It was held that refund was wrongly sanctioned. The appellant preferred an appeal before the Tribunal and same was dismissed on 14.12.2018. The rectification

[2024:RJ-JP:7622-DB]

[EXCIA-9/2020]

(2 of 3)

application filed met the same fate on 30.04.2019. An application filed for restoration of the appeal was dismissed on 18.10.2019 the present appeal is filed aggrieved of this order.

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The learned counsel for the respondent raised a preliminary objection that the appeal is not maintainable. He relies upon the decision of Mangalam Cement Limited vs. Union of India reported in (2015) SCC Online Raj 3492 & CIT vs. Saroop Tanneries Ltd. reported in (2015) 60 taxmann.com 305 .

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The learned counsel for the appellant submits that the contention raised in appeal was not decided by the Tribunal, hence, the appeal is maintainable. 5. Section 35G of the Central Excise Act, 1944 is reproduced

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below:-

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“35G. Appeal to High Court.-(1) An Appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1^st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of the goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law.

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(2) The Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be-

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(a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party;

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(b) accompanied by a fee of two hundred rupees where such appeal is filed by the other party;

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[(2A) The High Court may admit an appeal after the expiry of the period of one hundred and eighty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period.]

[EXCIA-9/2020]

[2024:RJ-JP:7622-DB]

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Under Section 35G an appeal from every order passed in appeal by the Tribunal on or after 01.07.2003, involving substantial question of law shall lie to the High Court.

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In the case in hand, the appeal is filed against dismissal of an application for the restoration of the appeal and not against an order passed in appeal, hence the appeal is not maintainable. Similar view is taken in the decision relied upon by the learned counsel for the respondent cited above.

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The appeal is dismissed as not maintainable.

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Needless to say that the appellant shall be at liberty to avail remedies in accordance with law.

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(SHUBHA MEHTA),J

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(AVNEESH JHINGAN),J

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LAKSHYA-DAKSH/45

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Whether Reportable: Yes/No

M/S Jal Mahal Resorts Private Ltd. v. Commissioner of Central Goods and Service Tax

Case brief

What is this about?

What did the court decide?

M/S Jal Mahal Resorts Private Ltd. v. Commissioner of Central Goods and Service Tax

Case brief

What is this about?

What did the court decide?

What the court decided

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