2008 (1) TMI 383 - AT - Service Tax

Dismissed appeal due to non-compliance with pre-deposit order; Res judicata applied; Appeal barred by previous dismissal.

The appeal was dismissed by the Tribunal due to non-compliance with a pre-deposit order, with the appellant's argument of factory closure since 1998 not ... Appealable orders - Superintendent (Appeals) dated 7-11-2007 addressed to the appellant conveying that the appeal preferred by them to the Commissioner (Appeals) is not maintainable as the pre-deposit of Rs. 2 lakhs ordered by Commissioner (Appeals) in his order dated 7-12-1998 was not made within time – appellant filed an appeal before CESTAT against that letter – held that the impugned order is actually not an appealable order at all for the reason that the same has been issued by Superintendent within the jurisdiction of the appellant’s unit. Even the letter has not been signed for the Commissioner. Since there is no appealable order from any competent authority, the appellant cannot come in appeal to CESTAT aggrieved over this letter. The appellant has to only approach the departmental authorities for giving an appealable order. Therefore, for the above reason, I dismiss the stay application and appeal. Issues:- Maintainability of appeal due to non-compliance with pre-deposit order- Res judicata in relation to the appeal dismissal by the Tribunal- Applicability of res judicata based on the cause of action and relief prayed- Appealability of the order issued by the SuperintendentAnalysis:1. The appeal was filed against a letter from the Superintendent stating that the appeal to the Commissioner was not maintainable due to non-compliance with a pre-deposit order. The appellant argued that their factory was closed since 1998, preventing them from making the deposit on time. The consultant cited cases where delays of several years were condoned.2. The Departmental Representative (DR) highlighted a previous order by the Bench dismissing an appeal against the same impugned order, stating res judicata applied as there was no reasonable ground for delay. The DR argued that since the appeal was already dismissed by the Tribunal, a fresh appeal could not be heard.3. The consultant contended that there was no res judicata as the cause of action and relief sought in the previous and present proceedings were different. Various decisions were cited to support this argument.4. The DR distinguished the citations provided by the consultant, stating they related to civil suits and were not applicable to the impugned order, which involved a show-cause notice covering all aspects. The DR argued that the cause of action in civil suits differs from that in the present case.5. The Tribunal found that the impugned order was not appealable as it was issued by the Superintendent within the appellant's unit and was not signed by the Commissioner. Since there was no appealable order from a competent authority, the appellant was directed to approach departmental authorities for an appealable order. Consequently, the stay application and appeal were dismissed.