E.M. Mani Constructions P. Ltd. vs Commr. of C. Ex., Cus. & S.T.

Antony Dominic, J.—Heard the learned senior counsel for the appellant and the learned Standing Counsel for the respondents. Challenging the order-in-original No. 35/2010/ST, the appellant filed Annexure-A; Appeal No. S.T./569 of 2011 before the 2nd respondent/Tribunal. Along with the appeal they also filed Annexure-B, application for waiving of pre-deposit and stay.

Though this application for stay came up before the Tribunal on different occasions, finally the matter was taken up for hearing on 2-6-2014. On that occasion, on account of a personal inconvenience of the learned counsel for the appellant, he was absent and in spite of a request for an adjournment, the Tribunal proceeded to pass Annexure-D order and granted stay on condition that the appellant shall deposit the entire amount of Service Tax with interest thereon and 50% of the penalty levied. Subsequently, Annexure-B, application for modification of Annexure-D order was filed by the appellant, which was rejected by the Tribunal by Annexure-F order. It is aggrieved by Annexures-D and F orders, this appeal is filed.

When the matter was taken up for hearing, though the learned Senior counsel for the appellant contended that on merits the case is already decided in favour of the appellant by virtue of the decision of the Principal Bench of the Tribunal in its order in Bhayana Builders (P) Ltd. v. Commissioner of Service Tax, Delhi 2013 (32) S.T.R. 49 (Tri.-LB)] we do not think it necessary to this Court to go into the merits of the matter for the reason and that, according to us, the matter even otherwise needs re-consideration.

From the facts that we have already noticed, when Annexure-D order was passed, admittedly, the counsel for the appellant was absent. Therefore, the said order was passed without hearing the appellant. Insofar as this Annexure-F order is concerned, reading of the order itself show that the Tribunal was more influenced by the limits of its jurisdiction in an application for review. Evidently therefore, both these orders are passed without appreciating the merits canvassed by the appellant.

In such circumstances and also taking into account the huge monetary liability that is fastened on the appellant, we admit the matter back to the Tribunal. Therefore, for the aforesaid reasons, Annexures-D and F orders passed by the 2nd respondent/Tribunal are set aside and the matter will stand remitted to the Tribunal, which shall hear Annexure-B application made by the appellant along with Annexure-A appeal and pass fresh orders in the matter. The C.E.A. is disposed of accordingly.