Industrial Safety Bureau vs Union of India

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Mukesh R. Shah, J.—Shri Rituraj Meena, learned advocate waives service of notice of rule on behalf of respondent No. 1 and Shri Y.N. Ravani, learned advocate waives service of notice of rule on behalf of respondent No. 3. With the consent of the learned advocates appearing on behalf of the respective parties, the present petition is taken up for final hearing today.

By way of this petition under Article 226 of the Constitution of India the petitioner has prayed for an appropriate writ, order or direction and to quash and set aside the orders dated M/12657/WZB/AHD/2013, dated 17-6-2013, M/14943/WZB/AHD/2013, dated 18-10-2013 and A/11632/2013, dated 29-11-2013 made by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as ''the Tribunal'') by which the Tribunal has vide order dated 29-11-2013 dismissed the appeal preferred by the petitioner against the Order-in-Appeal passed by the Commissioner (Appeals) on non-deposit of the pre-deposit as ordered earlier.

2.1 Vide order dated 29-8-2008 the original authority confirmed the demand of service amounting to Rs. 5,53,367/- under sub-section (1) of Section 73 of the Finance Act, 1994 (hereinafter referred to as ''the Act''). The authority also imposed penalty under Sections 75A, 78, 76 of Chapter V of the Act and confirmed the demand of interest at appropriate rate, on the total service tax determined at Rs. 5,53,367/- under Section 75 of the Act.

2.2 Being aggrieved and dissatisfied with the Order-in-Original passed by the original authority-Additional Commissioner, Central Excise & Customs, Daman dated 29-8-2008 the petitioner preferred appeal before the Commissioner (Appeals). However, the Commissioner (Appeals) dismissed the said appeals for non-compliance of the stay order vide which the petitioner was directed to deposit 1.5 lakhs, out of the total service tax of Rs. 5,53,367/-. It appears that thereafter the petitioner preferred appeal before the Tribunal and the Tribunal on the concession given by the Commissioner (Appeals) directed the petitioner to deposit a further sum of Rs. 65,000/- (it is reported that the petitioner has already deposited a sum of Rs. 35,000/-) so as to make the total deposit of Rs. 1 lakh. It appears that thereafter the petitioner deposited the aforesaid amount and the Commissioner (Appeals) thereafter decided the appeal on merits and confirmed the Order-in-Original. Being aggrieved and dissatisfied with the order passed by the Commissioner (Appeals) dismissing the appeal and confirming the Order-in-Original, the petitioner preferred appeal before the Tribunal and the Tribunal directed the petitioner to deposit the entire demand of service tax with interest and penalty as pre-deposit. As, though thrice an opportunity was given, the aforesaid amount of pre-deposit was not deposited and, therefore by impugned order dated 29-11-2013 the Tribunal dismissed the said appeal on the ground of non-deposit of the pre-deposit as directed earlier. Being aggrieved and dissatisfied with the impugned judgment and order passed by the Tribunal, the petitioner has preferred the present petition under Article 226 of the Constitution of India.

Having heard Shri Kuntal Parikh, learned advocate appearing for Shri Paresh Dave, learned advocate appearing on behalf of the petitioner, Shri Rituraj Meena, learned advocate appearing on behalf of respondent No. 1 and Shri Y.N. Ravani, learned advocate appearing on behalf of respondent No. 3 and in the facts and circumstances of the case, we are of the opinion that if the petitioner is directed to deposit the demand of service tax with interest as pre-deposit and penalty imposed under Sections 75A, 78, 76 of Chapter V of the Act is waived and the appeal is decided and disposed on its own merits, it will meet the ends of justice. We apprehend that if the petitioner deposits the entire amount with penalty imposed under Sections 75A, 78, 76 of Chapter V of the Act, it would cause undue hardship to the petitioner.

3.1 The learned advocates appearing on behalf of the respective parties do not invite any further reasoned order if the Tribunal is directed to decide the appeal preferred by the petitioner on deposit of the entire demand of service tax with interest as pre-deposit and the penalty imposed under Sections 75A, 78, 76 of Chapter V of the Act is waived.

Under the circumstances, we are not passing any further reasoned order as any observation by this Court may affect the case before the Tribunal as the appeal is yet to be decided and disposed of on merits. In view of the above and for the reasons stated hereinabove and in the facts and circumstances of the case, the impugned order passed by the Tribunal dated 29-11-2013 dismissing the appeal preferred by the petitioner is hereby quashed and set aside and it is directed that, on deposit of the entire demand of service tax i.e. Rs. 5,53,367/- with interest levied by the original authority while passing the Order-in-Original as pre-deposit within a period of eight weeks from today, the Tribunal is directed to decide and dispose of the appeal preferred by the petitioner in accordance with law and on its own merits. The deposit of penalty imposed under Sections 75A, 78, 76 of Chapter V of the Act is hereby waived. Rule is made absolute to the aforesaid extent. There shall be no order as to costs.