M/S. Indus Earth Movers vs Commissioner Of Customs ,Central ...
- CitationAppeal No. 30/2013
Ratio decidendi
The rule this decision rests on
The Commissioner (Appeals) may not dismiss an appeal for non-compliance with a stay order where the appellant has moved an application for modification of that order and the application has not been considered; in such circumstances the dismissal, without first deciding the pending application and affording the appellant an opportunity to be heard, cannot be sustained, and the matter must be remanded for fresh decision on the stay petition after hearing the appellant.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. 30/2013 (H-IV) S. Tax dated 26/02/2013 passed by Commissioner of Central Excise and Service Tax, HYDERABAD-II (Appeal).]
For approval and signature:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes
M/s. Indus Earth Movers Plot No. 8, Ground Floor, Hussaini Height Complex, Beside Reliance Petro Pump, Hyderguda, Attapur Road, Upparapally HYDERABAD 500048 AP Appellant(s)
Versus
Commissioner of Customs ,Central Excise and Service Tax -IV POSNETT BHAWAN, TILAK ROAD, RAMKOTI, HYDERABAD 500 001. AP Respondent(s)
Appearance:
Mr. Rajesh Kumar, CA HIRAGANGE & ASSOCIATES #1010, 1st floor(Above Corp. Bank) 26th Main, 4th T Block, Jayanagar, Bangalore 560041. Karnataka For the Appellant
Mr. S. Ilangovan, AC (AR) For the Respondent
Date of Hearing: 04/06/2015
Date of Decision: 04/06/2015
CORAM:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER
Final Order No. 21289 / 2015
Per : ARCHANA WADHWA
After dispensing with the condition of pre-deposit, we proceed to decide the appeal itself. The Commissioner (A) has dismissed the appeal for non-compliance with the stay order passed by him directing the applicant/appellant to deposit the entire service tax amount of Rs.28 lakhs approximately.
2. The grievance of the appellant is that the said order was passed ex parte and they have moved an application for modification which application does not stand considered by him and appeal is dismissed, without passing any orders on the said application.
3. In view of the above, we set aside the impugned order and remand the appeal to Commissioner (A) for fresh decision on the stay petition filed by the appellant, after giving an opportunity to the appellant to put forth their submissions.
Stay petition as also appeal gets disposed of in above manner.
(Order pronounced in open court)
B.S.V.MURTHY TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER
rv 2
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