Shri Krisshna Builders vs Commissioner of Service Tax

T.S. Sivagnanam, J.—This appeal is directed against the order passed by the Customs, Excise and Service Tax Appellate Tribunal (The Tribunal), in Miscellaneous Order No. 42929 of 2013 in ST/S/170/2012 in ST/234/2012 and 1063/2010, dated 31-12-2013. The assessee filed an appeal before the Tribunal against the order passed by the Commissioner of Service Tax dated 31-1-2012 by which, the Commissioner demanded Service Tax of Rs. 59,09,543/- for the period from July, 2007 to December, 2009 under proviso to Section 73(1) of the Finance Act r/w Section 73(2) of the Act. Further the assessee was directed to pay interest for nonpayment of service tax in terms of Section 75 of the Act and though penalty equivalent, to the amount of the Service Tax was demanded under Section 78 of the Finance Act, 1994 (The Act), however taking note of the contentions raised by the assessee, the penalty was reduced to 25% of the service tax demanded. The assessee was also directed to pay an amount of Rs. 6,061/- for interest short-paid. Further no penalty was imposed under Section 76 of the Act. Along with the appeal, the assessee filed an application for stay of the Order-in-Original dated 31-1-2012 for waiver of pre-deposit and interest. When the application for waiver of pre-deposit and stay came up for hearing before the Tribunal on 31-12-2013 none appeared for the assessee and in the absence of any application for adjournment, the Tribunal proceeded to hear the Authorised Representative of the Department and having noted that the case was adjourned, earlier on several occasions, directed the appellant to pre-deposit a sum of Rs. 59,09,543/- being the entire amount of service tax demanded.

Challenging the said order, the assessee is before this Court and seeks admission of the Civil Miscellaneous Appeal raising the following substantial questions of law:

Has not the CESTAT erred in concluding that, the appellant is not interested in conducting the stay petition when the appellant had appeared on 24-9-2013 and conducted the case and the case was adjourned when further details were sought for?

Whether in the facts and circumstances of the case, the CESTAT is right in not considering the preliminary question of limitation before directing the appellant to pre-deposit the entire amount of service tax?

Whether in the facts and circumstances of the case, the CESTAT is right in not considering the fact that the appellant''s bona fides are proved by the fact that the appellant had paid service tax on flats sold to third parties even prior to the introduction of explanation to Section 65(105)(zzzh) w.e.f. 1-7-2010 and therefore the benefit of waiver of pre-deposit ought to be given to the appellant?

In the memorandum of appeal, the assessee has stated that when the case came up before the Tribunal for hearing on 24-9-2013 certain details were sought for by the Tribunal and the assessee sought further time. Thereafter the matter was adjourned to 31-12-2013 and in the meanwhile, the father of the counsel for the appellant expired and the counsel was away from the station owing to certain religious formalities and returned only during the last week of December. Further it is stated that the counsel for the assessees checked the website of CESTAT to see whether the case was listed and due to oversight the counsel was under the impression there was no sitting of the Tribunal and the assessee''s case has not been posted for hearing. The assessee would further contend that out of the total demand, they had paid a sum of Rs. 33,44,454/- prior to investigation and the balance amount as per the show cause notice was Rs. 59,09,543/-and further a sum of Rs. 12,00,364/- was paid subsequently and this has been appropriated. Therefore, the assessee would contend that in all they have paid a sum of Rs. 95,44,818/- out of the total service tax demand of Rs. 1,42,53,997/-which according to the assessee works out to 75% of the demand. It is further contended that the appellant had paid service tax on the flats sold to third parties even prior to the insertion of explanation to Section 65(105)(zzzh) with effect from 1-7-2010.

We have heard Mr. Murali Krishna learned counsel appearing for the assessee and Mr. V. Sundareswaran, learned Standing Counsel appearing for the Revenue.

It appears that as on the date when the application was disposed of on 31-12-2013, it was not the first hearing and the case was heard earlier. According to the assessee, the case was adjourned for the purpose of furnishing certain materials. However, the nature of such materials is not placed before this Court. Be that as it may the reason assigned for non-appearance on 31-12-2013, prima facie appears to be genuine in the absence of any rebuttal for the same. Considering the above fact and also the contention that the assessee has already paid a sum of Rs. 83,44,454/- out of the total demand, we deem it appropriate that the assessee should be given an opportunity to place all the materials before the Tribunal. It also appears that the Department representative who appeared before the Tribunal had not placed before the Tribunal, the amounts paid by the assessee prior to the issuance of the show cause notice as claimed by the assessee in the application seeking stay/waiver of pre-deposit. In view of the above, this Civil Miscellaneous Appeal is allowed and the impugned order is set aside. The matter is remitted back to the Tribunal for considering of the miscellaneous application afresh on merits. No costs. Consequently, the connected miscellaneous petition is closed.