Adonis Electronics Pvt. Ltd vs Commissioner Of Service Tax
- CitationAppeal No.ST/S/41810/2014 & ST/41549/2014
Ratio decidendi
The rule this decision rests on
Where an appellant has not obtained a stay of the pre-deposit order from the High Court, the dismissal of the appeal by the appellate authority for non-compliance with the pre-deposit direction under Section 35F read with Section 83 of the Finance Act is correct, notwithstanding the pendency of a writ petition challenging that order. Where the appellate authority has not examined the merits of the dispute, the appellate tribunal may, rather than adjudicate the merits itself, direct a reduced pre-deposit as a condition, remand the appeal to the appellate authority, and require that authority to hear the appeal on merits after a reasonable opportunity of hearing is given to the appellant upon compliance.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI
Appeal No.ST/S/41810/2014 & ST/41549/2014
[Arising out of Order-in-Appeal No.186/2014 (M-ST) dt. 10.4.2014 dt. passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Chennai]
Adonis Electronics Pvt. Ltd. Appellant
Versus
Commissioner of Service Tax, Chennai Respondent
Appearance:
Shri C. Saravanan, Advocate For the Appellant
Ms. Cecillia Parthasarathy, AC(AR) For the Respondent
CORAM :
Honble Shri R. Periasami, Technical Member Honble Shri P.K. Choudhary, Judicial Member
Date of Hearing/Decision : 11.6.2015
FINAL ORDER No.40620/2015
Per R. Periasami
Appellant filed this appeal against the Commissioner (Appeals) order dt. 10.4.2014 wherein the LAA has dismissed the appeal for non-compliance of predeposit under Section 35F read with Section 83 of the Finance Act. The adjudicating authority confirmed the demand of Rs.11,36,029/- along with interest and also imposed equal amount of penalty under maintenance and repair service. On appeal, the LAA has ordered for predeposit of 50% of the service tax amount confirmed vide Interim order dt. 20.11.2013. Since they have not complied with stay order, the appeal was dismissed.
2. Ld. Advocate for the appellant submits that against the predeposit order of Commissioner (Appeals) dt. 20.11.2013, they filed a writ petition before the Hon'ble High Court, Madras in W.P.No.34305 of 2013 and the said writ petition is still pending and not yet disposed. The LAA in para-6 of the impugned order has recorded that due to pendency of writ petition, the extension of time was granted to comply with stay order. Ld. Commissioner (Appeals) has recorded that since appellant was unable to obtain any order against the stay order passed by LAA, appeal was subsequently dismissed for non-compliance.
3. After hearing both sides, we find that appellant though preferred writ petition before Hon'ble High Court against the LAA's interim order of predeposit, till date there is no stay order passed by Hon'ble High Court against the predeposit order. Therefore, the LAA has rightly dismissed the appeal. Since the LAA has not discussed the issue in detail on merit, we find that it would be appropriate to call for the appellant to make predeposit so as to enable the appellant to appear before LAA to argue on merits. Accordingly, the appellant is directed to predeposit Rs.1,25,000/- (Rupees One lakh twenty five thousand only) within 4 weeks and to make compliance by 16.7.2015. On compliance, appellant shall produce proof of payment before LAA who shall hear the appeal on merits, after affording a reasonable opportunity of hearing to the appellant. The appeal is remanded to the Commissioner (Appeals) in the above terms. Stay application gets disposed of.
(Dictated and pronounced in open court)
(P.K. CHOUDHARY) (R. PERIASAMI) JUDICIAL MEMBER TECHNICAL MEMBER
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