Krushak Seva Sahayya Samiti Trust vs C.C.E. and C.

R.M. Borde, J.—Heard. Admit. With the consent of respective counsel for the parties, the appeal is taken up for final disposal. The substantial question of law, which is involved in the instant appeal is-

As to whether the order passed by the Customs, Excise and Service Tax Appellate Tribunal dismissing the appeal presented by the appellant is legal and proper and whether there is prima facie case, balance of convenience in favour of the appellant and whether irreparable loss would cause to the appellant if the order dismissing the appeal on account of failure to make pre-deposit is not set aside?

The appellant herein tendered an appeal to the CESTAT challenging the order passed by the Commissioner (Appeals) confirming the order passed by the Assessing Officer. While entertaining the appeal and at the stage of consideration of an application seeking stay to the order of recovery of Service Tax amount along with the interest levied thereon, the Central Excise and Service Tax Appellate Tribunal, by an order dated 18-4-2011 directed the appellant to pre-deposit an amount of Rs. 50 lakhs u/s. 35F of the Central Excise Act r/w Section 83 of the Finance Act, 1994, within 6 weeks from the date of the order. It was further recorded that in the event of due compliance, there shall be waiver of the pre-deposit and stay of the recovery in respect of penalty amount. The appellant failed to deposit the amount as such, the appeal was taken up for consideration on 19-8-2011 and the same came to be dismissed for non-compliance of Section 35F of the Central Excise Act, 1944 r/w Section 83 of the Finance Act, 1994.

The counsel appearing for the appellant submits that out of the total amount of Rs. 2.04 crores, the appellant has already paid an amount of Rs. 1.36 crores and the balance amount of Service Tax payable is around Rs. 67 lakhs. It is urged that the order passed by the appellate Tribunal is unduly harsh and the appellate Tribunal ought to have directed waiver of the condition in respect of pre-deposit of amount.

We have heard the arguments advanced by the respective counsel appearing for the parties and we are of the considered opinion that the directions of the appellate Tribunal in respect of the pre-deposit of the amount need not be interfered with. The counsel appearing for the appellant, on instructions, states that the appellant would deposit the amount as directed by the Appellate Tribunal within a specified period and the Tribunal be directed to decide the appeal on its own merits. Considering the submissions made by the appellant, we are of the view that the ends of justice would be met if sufficient time is granted to the appellant to comply with the directions issued by the Appellate Tribunal on 18-4-2011. The appellant shall deposit an amount of Rs. 50 lakhs with the Commissioner of Central Excise, Aurangabad within a period of three months from today. Subject of making the deposit of the amount, as directed above, the order passed by the appellate Tribunal on 19-8-2011 stands quashed and set aside. The Tribunal shall take up the appeal for consideration subject to compliance in respect of pre-deposit of the amount within the time stipulated above and decide the same on its own merits and in accordance with the law, expeditiously. Appeal is allowed accordingly. No costs.