2024 (10) TMI 1733 - AT - Service Tax

Appeal dismissed where appellant failed to deposit confirmed demand within four weeks and no modification application existed

CESTAT New Delhi - AT dismissed the appeal. The appellant failed to deposit the entire confirmed demand within four weeks as ordered on 31.01.2014, and ... Non-fulfilment of requirement of deposit - invocation of Section 35 F of the Central Excise Act, as it stood prior to 06.08.2014 - Demand of service tax with penalty and interest - HELD THAT:- It is not in dispute that the appellant was required to deposit the entire confirmed demand within four weeks by the order dated 31.01.2014. It is also not in dispute that the appellant did not deposit the said amount within the stipulated period four weeks. In paragraph 15 of the memo of appeal filed before the Tribunal, the appellant has merely stated that an application for modification of stay order dated 31.01.2014 was filed. It does not mention the date on which it was filed nor does it give the diary number of the application, which would have been given if the application was filed. If the appellant had actually filed the modification application, there is no reason as to why the appellant would not move applications before the Commissioner (Appeals) for deciding the stay application at the earliest and would not have kept quiet for a long period of about four years. It is, therefore, not possible to accept the contention by the appellant that any application had been filed for the modification of the interim order dated 31.01.2014. The statement contained in the impugned order of the Commissioner (Appeals) that no modification application had been filed is correct. In any view of the matter, mere filing of the modification application does not mean that the order earlier passed on 31.01.2014 ceases to have any effect. If the order was not modified by the Commissioner (Appeals), it was incumbent upon the appellant to make the deposit as was required by order dated 31.01.2014 - The appellant had not complied with the terms of the order dated 31.012.2014. The appellant, therefore, cannot complain that the Commissioner (Appeals) committed any illegality in dismissing the appeal. Appeal dismissed. ISSUES PRESENTED AND CONSIDERED 1. Whether non-compliance with an interim order under section 35F of the Central Excise Act (pre-06.08.2014 text) requiring deposit of the entire confirmed demand within the stipulated period renders the appeal liable to be rejected by the appellate authority. 2. Whether the mere assertion that an application for modification of a stay order was filed (without particulars or proof) prevents rejection of an appeal for non-compliance with a deposit direction under section 35F. 3. Whether an unadjudicated application for modification operates to suspend or nullify the operative effect of the original deposit direction so as to excuse non-compliance pending the decision on modification. ISSUE-WISE DETAILED ANALYSIS Issue 1: Effect of non-compliance with a section 35F deposit direction - legal framework Legal framework: Section 35F (as it stood prior to 06.08.2014) required that, pending an appeal, the person desirous of appealing shall deposit with the adjudicating authority the duty demanded or penalty levied, subject to discretionary power of the Commissioner (Appeals) or Appellate Tribunal to dispense with such deposit where deposit would cause undue hardship and subject to conditions to safeguard revenue. The provision contemplates rejection of appeal for non-compliance with the deposit requirement. Precedent treatment: The impugned judgment does not rely on or distinguish any prior judicial precedents; the Court proceeded on the statutory text and factual record. Interpretation and reasoning: The Court treated the statutory mandate as mandatory in effect: where an appellate order directs deposit of the confirmed demand within a specified period, the appellant must comply. The appellate order here was clear and unambiguous - deposit of the entire confirmed demand within four weeks - and the appellant conceded non-compliance. The Tribunal held that failure to make the deposit rendered the appeal liable to be rejected without adjudicating the merits, the rejection being a consequence of non-compliance with the stay order and the statutory regime embodied in section 35F. Ratio vs. Obiter: Ratio - Non-compliance with a valid deposit direction under section 35F (pre-06.08.2014) authorizes rejection of the appeal for failure to comply with statutory stay conditions. Obiter - None beyond explanatory remarks on discretion vested in appellate authority. Conclusion: The Court affirmed that the appellate authority properly rejected the appeal for non-compliance with the deposit direction under section 35F; where the deposit order stands unmodified and remains effective, non-compliance justifies dismissal of the appeal. Issue 2: Effect of an asserted but unproved modification application on right to avoid deposit - legal framework Legal framework: Section 35F permits the appellate authority to dispense with deposit upon application, but absent such dispensation (or a modification order), the deposit requirement remains operative. An application for modification must be filed and decided to alter the effect of the deposit direction. Precedent treatment: No precedents were invoked or relied upon in the judgment; the Court evaluated the point on documentary and evidentiary record. Interpretation and reasoning: The Tribunal examined the record and the appellant's pleadings. The appellant's memo merely alleged that an application for modification was filed, without date, diary number, or documentary proof. The Court reasoned that absent particulars or contemporaneous pursuit of interlocutory relief (e.g., prompt motions to expedite decision), the bare assertion did not establish that any application was ever filed or that the deposit direction had been stayed or modified. The Court also noted the appellant's prolonged inaction (about four years) which undermined the credibility of the claim that a modification application had been filed and left undecided. Ratio vs. Obiter: Ratio - A mere unparticularized assertion in an appeal memorandum that a modification application was filed does not suffice to vitiate the effect of an operative deposit direction; the appellant must establish that a modification application was actually filed and/or that the deposit direction was suspended or altered by order. Obiter - Observations on the appellant's failure to pursue interlocutory relief promptly. Conclusion: The Tribunal correctly found no credible proof of any filed modification application; the statement in the appellate order that no modification application was filed was held to be correct, and the lack of proof meant the deposit direction remained operative. Issue 3: Whether filing a modification application automatically suspends the effect of the original deposit order - legal framework Legal framework: The statutory scheme contemplates that the appellate authority may, in its discretion, dispense with or modify the deposit requirement; however, an application for such relief requires active decision by the appellate authority to change the operative effect of the original order. Precedent treatment: The judgment does not cite case law altering this principle; it applied the statutory text and administrative practice. Interpretation and reasoning: The Court held that mere filing of an application for modification does not automatically suspend or nullify the earlier deposit order. Unless the Commissioner (Appeals) actually modifies the order or dispenses with the deposit, the original order remains binding and enforceable. Thus, the appellant could not rely on the supposed pendency of a modification application to justify non-compliance with the deposit direction. The Tribunal emphasized the obligation on the appellant to comply with the existing order until lawfully altered. Ratio vs. Obiter: Ratio - Filing an application for modification does not, by itself, suspend the operative effect of a deposit direction under section 35F; an express modification or dispensation by the appellate authority is required to relieve the appellant from compliance. Obiter - Commentary that parties should actively pursue interlocutory remedies if they intend to avoid compliance. Conclusion: The Court concluded that even if a modification application had been filed, without an order modifying or staying the deposit direction the appellant remained obliged to make the deposit; hence non-compliance could not be excused. Cross-references and interaction of issues The issues are interrelated: (a) the mandatory effect of deposit directions (Issue 1) is not negated by an unproved or undecided modification application (Issues 2 and 3); (b) proof of filing and/or an express order modifying/dispensing with the deposit is necessary to alter the appellant's duty to deposit; and (c) failure to comply with an unmodified deposit order mandates rejection of the appeal without addressing merits. Final Conclusion The Court held that the appellate authority correctly rejected the appeal for non-compliance with the interim deposit direction under section 35F (pre-06.08.2014). The appellant failed to substantiate any modification application or show that the deposit order had been lawfully suspended or altered; mere unparticularized assertions did not excuse non-compliance. The dismissal for non-compliance was upheld as warranted by the statutory scheme and the facts on record.