Protection and Security Services vs Union of India

Akil Kureshi, J.—Heard learned advocate Shri Shah for the petitioners and Shri Ravani for respondent nos. 1 & 3. Though served, no one appeared for the respondent no. 2-Registrar of CESTAT. Since similar grievances are voiced in both the petitions, we may record the facts as stated in Special Civil Application No. 15348 of 2011.

Petitioner is a partnership firm. Against the petitioner, the adjudicating authority had passed an order dated 10th December 2007 confirming the demand of service tax of Rs. 15,16,053/-. He also demanded interest on such amount. Separate penalties were also imposed.

The petitioner carried the order-in-appeal. The Commissioner (Appeals), however, dismissed the appeal by an order dated 17th March 2009. The petitioner thereupon approached the CESTAT. Pending the appeal, the petitioner prayed for stay and waiver of pre-deposit condition. Such application was dismissed by an order dated 31st May 2010 observing that on matter being called out, no body appeared for the petitioner nor any adjournment request was made, despite notice of hearing having been sent to the appellant well in advance. Tribunal noted that on previous two occasions also, the appellant had remained absent.

Tribunal thereafter passed another order dated 9th August 2010 by which the petitioner''s appeal came to be dismissed for non-compliance of the provisions of Sec. 35F of the Central Excise Act, 1944. The Tribunal noted that while passing the order on the stay application, the appellant was directed to deposit entire dues within eight weeks which was not done. Hence, the dismissal of the appeal.

At that stage, the petitioner approached the Tribunal once again, sought modification of its order on pre-deposit and also prayed for restoration of the appeal. Such application, however, once again came to be dismissed by the Tribunal by its order dated 3rd May 2011. The Tribunal passed the following order :-

The present restoration of appeal application and modification application stands filed in respect of the order No. S/493-494/WZB/AHD/2010, dated 31-5-2010, when the appellant was directed to deposit entire dues within a period of eight weeks from that date. It was observed in the said order that the appellants were not causing any appearance before the Tribunal inspite of the notices of hearing having been sent to them.

Against these orders passed by the Tribunal, the petitioner has approached this Court. In essence, the prayer of the petitioner is that as the application for waiver of pre-deposit and stay against the orders of the revenue authorities be revived and the petitioner be permitted to argue the same on merits before the Tribunal.

Since facts are similar in Special Civil Application No. 15346/2011, it is not necessary to record them separately in this order.

Counsel for the petitioner, on the basis of averments made by the petitioner on oath, submitted that there was no notice of hearing before the Tribunal. Notices, even if they were dispatched, were never served. The petitioners were, therefore, no aware of the date fixed by the Tribunal. It is categorically stated that no notice had been served for any of the dates fixed by the Tribunal.

Counsel for the revenue of course was unable to approve the above statement. He, however, pointed out that from the record it appears that notices were dispatched.

Counsel for the petitioner, in particular, pointed out that in respect to the application made by the petitioner to the Tribunal under Right to Information Act, the Registrar of the Tribunal conveyed that the orders dated 31st May 2010 and 11th August 2010 were dispatched but were returned back to the office with the postal stamp of "non-delivery" remark. This would further demonstrate that whatever be the reason, the petitioners were not served with the communications from the Tribunal. Under the circumstances, we are of the opinion that the petitioners are required to be granted an opportunity to appear before the Tribunal and argue their stay/waiver of pre-deposit applications.

Under the circumstances, orders dated 31st May 2010; 9th August 2010; and 3rd May 2011 are set-aside. In essence, the stay application/application for waiver of pre-deposit of the petitioner''s applications are revived. The same shall be considered by the Tribunal on merits. To remove any possibility of miscommunication, it is provided that such applications shall be placed before the Tribunal for preliminary hearing on 19th December 2011, on which date, without any notice from the Tribunal the petitioners or their counsel shall remain present. If there is no representation on behalf of the petitioner on that date, it would be open for the Tribunal to proceed ex parte. It is clarified that this date is fixed only as a preliminary date and it would be entirely the discretion of the Tribunal to fix the date of further or future hearings according to their convenience. With these directions, petitions are disposed of. Direct service to respondent no. 2 is permitted.