2012 (12) TMI 515 - AT - Service Tax

Dismissal of Stay Order Modification Application for Non-Compliance with Pre-Deposit Rules

The Tribunal dismissed the Applicant's Miscellaneous Application for modification of the Stay Order due to non-compliance with statutory provisions, ... Modification of Stay Order - directing to make the predeposit of 50% of the Service Tax - notice of hearing of the Stay Petition not served to Applicant - Held that:- Tribunal after having exercised jurisdiction for the purposes of passing an order for waiver of pre-deposit under the proviso to Section 35F cannot modify that order subsequently like an appellate authority, nor can keep tinkering with the order as and when applications for modification of the order are filed. It is significant to notice that the Supreme Court has ruled in C.C.E. v. A.S.C.U. Ltd.,[2002 (12) TMI 87 - SUPREME COURT OF INDIA] that the Tribunal does not even have the power to review its orders while exercising its appellate power under Section 35C when this is the legal position with regard to the exercise of the power in respect of the main appeal itself, it cannot be higher while passing orders in exercise of the power under the proviso to Section 35F, which is a provision stipulating the condition for maintainability of the appeal - Appeal is dismissed for non-compliance with the provisions of Section 35F of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 - miscellaneous Application for modification of the Stay Order dismissed. Issues involved:Application for modification of Stay Order due to lack of notice and hearing, non-payment of predeposit, dismissal of the Appeal for non-compliance with legal provisions.Analysis:The Applicant filed an Application seeking modification of a Stay Order issued by the Tribunal, requiring a 50% predeposit of Service Tax. The Applicant claimed that they were not served with a notice for the hearing, thus unaware of the proceedings. They requested a fresh hearing for their Stay Petition, which was decided without granting them an opportunity to present their case. The Revenue pointed out that the Stay Petition had been pending since June 2010, with dues amounting to approximately Rs.26.72 lakh. Despite attempts to notify the Applicant of the hearing dates, they failed to appear, leading to the Tribunal verifying that the notice was duly sent to the provided address. The Tribunal noted the significant duty and penalty involved and the prolonged pendency of the case. Consequently, the Stay Order required the Applicant to make the predeposit within a specified timeframe, which they failed to comply with by the given deadline.The Tribunal emphasized that modifying the Stay Order would amount to interference with its own decision. Citing a case law, the Tribunal highlighted the importance of fulfilling pre-deposit requirements and the limitations on modifying such orders. Referring to the legal provisions under Section 35F of the Central Excise Act, 1944, and Section 83 of the Finance Act, 1994, the Tribunal dismissed the Applicant's Miscellaneous Application for modification of the Stay Order. As a result of the Applicant's non-compliance with the statutory provisions, the Tribunal proceeded to dismiss the Appeal. The operative part of the Order was pronounced on a specified date, finalizing the decision in the matter.