Delhi High Court – Orders
Nk Sharma vs Assistant Commissioner on 21 July, 2025
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~58
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10353/2025
NK SHARMA .....Petitioner
Through: Dr. Ashutosh and Ms. Fatima,
Advocates.
versus
ASSISTANT COMMISSIONER .....Respondent
Through: Mr. Akash Panwar and Ms. Jasleen
Kaur, Advocates.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE RAJNEESH KUMAR GUPTA
ORDER
% 21.07.2025
1. This hearing has been done through hybrid mode.
2. The present petition has been filed by the Petitioner – N.K Sharma
under Articles 226 and 227 of the Constitution of India, inter alia, seeking
partial waiver of pre-deposit for a sum of Rs.1,12,000/- which constitutes 2.5
per cent of the penalty amount in filing the appeal before the Customs, Excise
and Service Tax Appellate Tribunal (hereinafter, ‘CESTAT’).
3. The said appeal arises out of Show Cause Notice dated 27th April, 2022
by which certain demand has been raised against the Petitioner. The Order-
in-Original dated 20th March, 2023 confirms the demand of service tax in
terms of Section 73(1) Finance Act, 1994 read with Section 174 of the Central
Goods and Service Tax Act, 2017 to the tune of Rs. 44,74,935/-. Even interest
on the confirmed demand as also the penalties have been imposed upon the
Petitioner.
4. The submission on behalf of the Petitioner is that 7.5 per cent of the
pre-deposit has already been made and the Petitioner is not in a position to
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arrange the remaining 2.5 per cent. Hence, waiver may be granted to the
Petitioner.
5. Mr. Akash Panwar, ld. Counsel for the Respondent however relies upon
the decision of a Coordinate bench of this Court in ‘Diamond Entertainment
Technologies vs. Commissioner Central Goods and Service Tax
Commissionerate Dehradun and Another‘, 2019 SCC OnLine Del 12414 to
argue that no such waiver of pre-deposit can be granted. In fact, this judgment
is also been followed by this Court in ‘Impressive Data Services Private
Limited vs. Commissioner (Appeals-I), Central Tax GST’, 2025 SCC
OnLine Del 2497 where it is held as under:
“7. The Court has considered the matter. The question raised
herein is whether the requirements mandated in terms of
Section 107(6) of the Act for pre-deposit can be waived or
not. Section 107(6) of the Act reads as under:
“(6) No appeal shall be filed under sub section
(1), unless the appellant has paid– (a) in full,
such part of the amount of tax, interest, fine, fee
and penalty arising from the impugned order, as
is admitted by him; and (b) a sum equal to ten per
cent. of the remaining amount of tax in dispute
arising from the said order, [subject to a
maximum of twenty-five crore rupees,] in relation
to which the appeal has been filed. [Provided that
no appeal shall be filed against an order under
sub-section (3) of section 129, unless a sum equal
to twenty-five per cent of the penalty has been
paid by the appellant]”
In terms of the above provision, insofar as the
admitted tax, interest or penalty is concerned, the
entire amount would have to be deposited. In so far
as the disputed amount is concerned, 10% of the
tax would have to be deposited as a pre-deposit
along with the appeal. The said provision does not,
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in the opinion of this Court, give discretion for
waiver of the pre-deposit. In any event in Diamond
Entertainment (supra) in the context of the Excise
Act, the Court has clearly observed as under:
“12. In Pioneer Corporation v. Union of India,
(2016) 340 ELT 63, Shubh Impex v. Union of
India, (2018) 361 ELT 199 (Del) and Manoj
Kumar Jha v. DRI, (2019) 365 ELT 166 (Del), this
Court, even while dealing with cases in which the
appeal had been filed before the CESTAT after 6
th August, 2014, nevertheless, allowed the appeal
to be prosecuted on payment of partial pre-
deposit, given the financial stringency in which
the respective appellants, before it, were placed;
a reading of these decisions would reveal, that the
attention of this Court had not been invited to its
earlier judgment in Anjani Technoplast (supra)
which set out, in clear and unambiguous terms,
that every appeal, before the CESTAT, filed after
the amendment of Section 35F/129E would be
maintainable only if mandatory predeposit were
made. xxxx 15. In view of the aforesaid merger, of
the judgment of the Division Bench of this Court
in Anjani Technoplast (supra) with the order
passed by the Supreme Court in appeal
thereagainst, we are bound, by Article 141 of the
Constitution of India, to follow the law laid down
in Anjani Technoplast (supra), in preference to
that laid down in Pioneer Corporation (supra),
Manoj Kumar Jha (supra) and Shubh Impex
(supra). xxxx
21. Inasmuch as the judgment in Pioneer
Corporation (supra), Shubh Impex (supra) and
Manoj Kumar Jha (supra) are contrary to the
law laid down in Anjani Technoplast (supra) as
well as to the law laid down in Vice-Chancellor,
University of Allahabad v. Dr. Anand Prakash
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Mishra (supra), A.B. Bhaskara Rao v. C.B.I.
(supra), Manish Goel v. Rohini Goel (supra) and
State of Bihar v. Arvind Kumar (supra), none of
which have been noticed in the said decisions, it
is not possible for us to follow the decisions in
Pioneer Corporation (supra), Shubh Impex
(supra) and Manoj Kumar Jha (supra), on
which learned counsel places reliance.”
8.In view of the settled legal position, the prayer for waiver
of pre-deposit cannot be entertained. However, if there is any
amount lying with the Government entities which the
Petitioner wishes to rely upon as being part of the pre-
deposit, the Petitioner is free to make such a prayer before
the concerned Appellate Authority. It is also submitted on
behalf of the Petitioner that Rs. 20 lakhs is also lying with the
Department out of a total of Rs. 64 lakhs which is to be
deposited by the Petitioner. This submission may also be
made before the concerned Appellate Authority.”
6. In view of the above, the prayer for partial waiver of the pre-deposit is
not tenable.
7. However, in the facts and circumstances of this case, the Petitioner is
granted time till 31st October, 2025 to make the remaining pre-deposit.
8. The petition is disposed of in the above terms. Pending applications, if
any, are also disposed of.
PRATHIBA M. SINGH, J.
RAJNEESH KUMAR GUPTA, J.
JULY 21, 2025
v/ck
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