2014 (12) TMI 697

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....efore the Registry. 3. Though served, no one appeared for the respondent. 4. The appeal is considered for following substantial question of law:                  Whether Customs Excise and Service Tax Tribunal committed an error in allowing the assessee's appeal on merits when in such appeal the assessee had challenged the decision of the Commissioner dismissing its appeal for non-fulfillment of the predeposit requirement? 5. We may record brief facts from Tax Appeal No. 989 of 2014. A show cause notice was issued on 17.12.2008 against the respondent-assessee calling upon why CENVAT credit of Rs. 17,59,073/- wrongly taken and utilized on fake or bogus in....

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....t. On furnishing the evidence/compliance on or before 09.09.2009, the requirement of balance duty, penalties are dispensed as condition to hear appeal.            "4. On failure to comply with the directions above, the appeal would automatically stand dismissed for non compliance of the condition. The appellants shall produce evidence of compliance. The case is listed for hearing on 16.09.2009 at 11.30 hrs. for evidence." 6. When despite sufficient opportunities, the appellant did not fulfill the pre-deposit requirement, the Commissioner dismissed the appeal only on this ground by his order dated 15.09.2009. Against such order, the appellant preferred further appeal before the Customs Exci....

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....ed orders and allowed the appeals with consequential relief." 7. Learned counsel Mr. Oza submitted that the appeal before the Tribunal was against the order passed by the Commissioner dismissing the appeal of the assessee on the ground of non-fulfillment of the pre deposit requirement. The Tribunal, therefore, ought to have decided this issue instead of entertaining the appeal on merits. He submitted that the revenue's stand has been that the issues were not covered by the Judgement of this Court in case of Prayagraj Dying & Printing Mills Pvt. Ltd. vs. Union of India (supra). In similar other cases, when such contention was urged, this Court, in view of the concession of the counsel for the revenue recorded by the Tribunal, permitted ....

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....or on such condition as may be imposed such requirement would have to be fulfilled. It was, in this background, that the Commissioner, while substantially waiving the pre-deposit requirement, insisted that against a duty demand of Rs. 17.59 lacs (rounded off) with matching penalty, the appellant should either deposit a sum of Rs. 3.50 lacs or offer bank guarantee for such sum. It was because that the appellant did not fulfill this requirement that the appeal came to be dismissed by the Commissioner. When the appellant therefore filed further appeal before the Tribunal, the question before the Tribunal was, whether the Appellate Commissioner committed an error in imposing such condition and subsequently dismissing the appeal for the appellan....