TaxTMI 
TaxTMI 
2014 (2) TMI 1132
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.... gross value received, proceedings were initiated by the show cause notice dated 07.10.2011. The proceedings culminated in the adjudication order, dated 28.03.2012. 3. Aggrieved, the appellant preferred an appeal before the Commissioner, Central Excise & Customs (Appeals), Kanpur, alongwith an application seeking waiver of pre-deposit. By the order dated 29.08.2012, the appellate authority granted waiver of pre-deposit, on condition of deposit of 25% of the duty and penalty confirmed by the adjudicating authority. The pre-deposit was directed to be made by 30.09.2012. The appellant by letter dated 29.08.2012 requested the appellate Commissioner to reconsider the order of pre-deposit, since it was under severe financial distress. 4. By the (impugned) order dated 13.12.2012, the Commissioner (Appeals) rejected the appeal for failure in pre-deposit, ordered on 29.08.2012. The appellate authority observed that if the assessee were aggrieved against the pre-deposit order it should have approached this Tribunal; that the appellate authority has become functous officio after passing the pre-deposit order; and had no authority to review that order. Since there was no authority confer....
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....missioner, Central Excise vs. Dunlop India Ltd. (1985) 19 ELT 22 (SC) ; Benera Valves Ltd. Vs. CCE (2006) 13 SCC 349 ; S. Vasudeva vs. State of Karnataka (1993) 3 SCC 467; Bhabya Apparels Pvt. Ltd. Vs. Union of India (2007) 10 SCC 129; Union of India vs. Adani Exports Ltd. (2007) 13 SCC 207 ; MonotoshSaha vs. Enforcement Directorate (2008) 12 SCC 359 ; Vijay Prakash D. Mehta vs. Collector of Custom 1989 (39) ELT 178 (SC) . 8. The issue whether the learned appellate Commissioner erred in the exercise of discretion (in directing pre-deposit of 25% of the assessed liability, vide the order dated 29.08.2012) must however depend on whether that order had attained temporal finality since the appellant had not challenged that order and allowed that order to attain finality; whether an appeal against that order could be preferred to this tribunal and whether in an appeal preferred against the impugned order (dismissing the appeal), treating this as an order passed under Section 35 A, the correctness of the pre-deposit order dated 29.08.2012 passed appellate Commissioner could be considered. 9. Section 35 A of the 1944 Act sets out the procedure to be followed by the appellate Commiss....
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....passed by the Commissioner (Appeals). 12. In Hindustan Lever Ltd. vs. CCE, Chennai 2006 (202) ELT 591 (Mad) , the Madras High Court ruled that an order passed under Section 35 F, not being a final order passed under Section 35 A of the 1944 Act, no appeal to this Tribunal is maintainable and a writ petition is maintainable. The Madras High Court quoted with approval decisions of this Tribunal in Bhushan Industrial Company Pvt. Ltd. Vs. CCE, Chandigarh 1984 (18) ELT 538 (T) ; and International Computers vs. CCE 1985 (19) ELT 83 (T) , for this conclusion. 13. In Rajkumar Shiv Hare vs. Assistant Director 2010 (25) ELT 3 (SC) , the relevant facts were that appellate Tribunal under FEMA, 1999 directed pre-deposit of the adjudicated penalty, observing that in default the appeal would be dismissed. Against this order a writ petition was filed before the Delhi High Court which was rejected on the ground of territorial jurisdiction. Before the Supreme Court the fundamental issue which was considered was (also) whether a writ petition was maintainable against an order of the appellate Tribunal directing pre-deposit. The apex Court concluded that under the statutory scheme of FEMA in pa....
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....as whether an order of the appellate Assistant Commissioner refusing to condone the delay in preferring an appeal is an order under Section 30(2) or one, under Section 31 of the Income Tax Act. Supreme Court held that Section 31 being the only provision relating to hearing and disposal of appeals, if an order dismissing an appeal on the ground of bar of limitation is passed in appeal, it must fall within Section 31. Section 33 conferred a right of appeal against all orders passed under Section 31. It must therefore follow that an appeal would lie not only against an order that could be passed under Section 31(3)(a), i.e. confirming, reducing, enhancing or annulling the assessment after a consideration of merits of the appeal but also against an order dismissing an appeal as a consequence of rejection of an application for condonation of delay in preferring the appeal. The Court concluded that an order of the appellate Assistant Commissioner (holding that there were no sufficient reasons for condoning the delay and rejecting the appeals as time barred), would be an order passed under Section 31 and be open to appeal and, it would make no difference in the position whether the order ....
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....ndia (1980) 3 SCC. 402; Gram PanchayatKauouda vs. Div. of Consolidation of Holdings (1989) Supp (2) SCC 465; and Lily Thomas vs. Union of India (2000) 6 SCC 512 ; 22. The scope of Section 35C(2) came to be considered in CCE, Vadodara vs. Steelco Gujarat Limited 2004 (163) ELT 403 (SC), which ruled that the power of review is not inherent to the Tribunal unless expressly granted by the statute; and no such power is granted under provisions of the 1944 Act. The provision grants but a limited power to rectify errors. The Court pointed out that although the ground for rectification namely, an error on the face of the record may be common to a power for review as well, the nature of the power to be exercised in the two cases must be distinguished; the power of review is not limited to rectification and is wider than the power conferred under Section 35C(2). Drawing on this decision, the Bombay High Court in Sarla Performance Fibers Ltd. vs. Union of India 2009 (16) STR 392 (Bom.); Union of India vs. Sir HurkisondasNurottam Hospital & Medical Research Centre 2010 (18) STR 254 (Bom.) ; and in Tejus Proprietary Concern of TejusRohitkumarKapadia vs. Union of India 2012 (275) ELT 175 (Bom....
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....f a Tribunal which was a basis for the pre-deposit was referred for consideration to a Larger Bench, that would constitute a change in circumstances warranting entertainment of an application for modification of the earlier interim order; and no application for modification of the stay order (in such circumstances) should be rejected, including on the ground that the appeal itself stood dismissed for failure of pre-deposit. 26. In MarutiUdyog Ltd. vs. CCE, Delhi-III 2004 (176) ELT 159 (Tri.-Del.) ; AdorPolycontainers Ltd. vs. CCE, Aurangabad 2001 (130) ELT 821 (tri. Mumbai) ; and in Dr. V.V. Patil S.S.K. Ltd. vs. CCE, Aurangabad 2005 (182) ELT 53 (Tri. Mumbai) this Tribunal ruled that the appellate Commissioner has power to consider modification of an order of pre-deposit passed by that authority. 27. In the light of the decisions of the Bombay High Court in Sarla Performance Fibers Ltd.; SirHurkisondasNurottam Hospital & Medical Research Centre and in Tejus Prop. Concern (supra), it would follow that the appellate Commissioner has jurisdiction and powers to entertain an application for rectification and modification of an order of pre-deposit or stay; to be exercised in term....
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.... A.P. High Court; (b) The Commissioner (Appeals) has the power, authority and jurisdiction to entertain an application for rectification or modification of an order of pre-deposit/ stay passed by that authority. While no power is specifically conferred on the Commissioner (Appeals) either under Sections 35 or 35A of the 1944, Act to review his own decision; and though the provisions of Section 35C(2) of this Act confer the power(to rectify any mistake apparent on the record) only on this Tribunal, the Commissioner (Appeals) may entertain an application for rectification/ modification of a pre-deposit order, but only for rectification of an error on the face of the record; (c) The appellate Commissioner could avoid an invitation/ plea for rectification by a careful, good faith and critical analysis of the prima-facie merits of the case and other relevant parameters, while disposing of an application for pre-deposit. Adjudicatory discipline mandates that the appellate Commissioner must follow established judicial norms by unreservedly following decisions of the Supreme Court, the High Courts and of this Tribunal, wherever such decisions ope....
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....tween the parties catalogues a break-up of the total cost of repair and maintenance, under several heads such as labour charges and value of items to be replaced. The adjudicating authority concluded that though the total cost of the repair package is separately mentioned under the different heads in invoices and the assessee had remitted central excise duty and sales tax, as the case may, be on the coils, transformer oil, and other purchased items which were used in the repairs/ maintenance, since the taxable service was provide under a composite contract, the gross consideration received is the taxable value. Assessee had preferred an appeal to the appellate Commissioner against this order and by the order dated 29.08.2012 the stay application was disposed of by the appellate authority directing pre-deposit of 25% of the assessed liability. Since there was a failure of the pre-deposit ordered, the appeal was dismissed on that singular ground. We notice that this Tribunal in the final order passed in vide the final order No. ST/A/402/12-Cus dated 23.05.2012 and in the final order dated 21.11.2012 in ST Appeal No.161/2012 has consistently ruled that goods which are deemed to hav....