N.S.K. Builders P. Ltd. vs CESTAT, Chennai

R. Sudhakar, J.�The appeal is filed against the order of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai, dated 7-6-2013, dismissing the appeal filed by the appellant herein for non-compliance of the conditional order of stay granted by the Tribunal. The brief facts of the case are as under: The appellant filed an appeal before the Tribunal challenging the order passed by the second respondent in Order No. 5/2012-ST, dated 30-5-2012, demanding Service Tax of Rs. 3,02,46,974/-, apart from penalty and interest. Along with the appeal, the appellant also filed an application for waiver of pre-deposit of amounts demanded.

1.1 By order dated 23-1-2013, the Tribunal, taking note of the fact that the appellant already deposited a sum of Rs. 77,32,903/-, directed the appellant to pre-deposit a further sum of Rs. 1.20 crores within a period of six weeks from the date of the said order and report compliance on 14-3-2013. In the said order, the Tribunal held that upon deposit of the amount, as stated above, the balance amount of tax, interest and penalties shall remain waived and recovery thereof shall be stayed pending the appeal.

1.2 Pursuant to the said order dated 23-1-2013 passed by the Tribunal, the appellant deposited only Rs. 20 lakhs and filed an application seeking extension of time for complying the order dated 23-1-2013. The Tribunal, by order dated 21-3-2013, directed the appellant to deposit the balance amount of Rs. 1 crore within a period of eight weeks from the date of the said order and report compliance on 23-5-2013. In the said order, the Tribunal observed that if the appellant does not deposit the amount within the stipulated period, the appeal will be dismissed.

1.3 Consequent to the said order dated 21-3-2013 passed by the Tribunal, the appellant deposited a further sum of Rs. 25 lakhs and failed to comply with the conditional order passed by the Tribunal. Taking note of the said fact, the Tribunal, by order dated 7-6-2013, dismissed the appeal filed by the appellant.

1.4 Aggrieved by the said order passed by the Tribunal, the present appeal is filed for the relief stated supra.

We have heard the learned counsel on either side and perused the orders passed by the Tribunal.

Section 35F of the Central Excise Act makes it amply clear that whenever any appeal is filed, the person filing the appeal should deposit before the adjudicating authority the duty demanded or the penalty levied, unless the same is dispensed with by the Tribunal. In case such deposit as contemplated under Section 35F of the Central Excise Act is not deposited, the appeal is liable to be dismissed.

In the case on hand, we find that the Tribunal, after hearing the learned counsel on either side; perusing the records and keeping in mind the undue hardship that would be caused to the appellant and the interest of the Revenue, had shown sufficient indulgence to the appellant by granting time to deposit a part of the tax demanded. Thereafter, the Tribunal also granted extension of time to comply with the said order, of course with a default clause that the appeal will be dismissed in the event of non-compliance of the conditional order within the stipulated time. As the appellant failed to comply with the conditional order passed by the Tribunal, the Tribunal has, in our considered opinion, rightly dismissed the appeal for non-compliance of the provisions of Section 35F of the Central Excise Act. For the foregoing reasons, we find no substantial question of law involved in this appeal and accordingly, the appeal is dismissed. Consequently, M.P. No. 1 of 2014 is closed.