2015 (1) TMI 39

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.... dated 27.5.2013 which dismissed the appellants appeal for non-compliance of the pre-deposit order of the Commissioner (Appeals). 3. The appellants filed an appeal before Commissioner (Appeals) against Order in original dated 27.9.2012 in terms of which service tax demand of Rs. 19,72,786/- along with interest and penalties under Sections 76, 77 & 78 of the Finance Act, 1994 was confirmed. The Commissioner (Appeals) vide ad interim order No. 8/Appl/PD/MRT-II/2013 dated 20.2.2013 ordered pre-deposit of 50% of Rs. 19,72,786/- within 15 days of the receipt of the said ad interim order clearly stating that failure to pre-deposit within the stipulated time shall make the appeal liable to be dismissed. The appellants made a request for modific....

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....ssioner (A) for modification of the order for recall of the interim order. The said application has not been considered by the Commissioner (A). The Commissioner (A) has got inherent power to recall the interim order. The Commissioner (A) ought to have considered all the pleas of the appellants, which have raised in the grounds of appeal before passing an interim order. There is no finding with regard to the grounds taken in the interim order. The Commissioner (A) has put the appellants on terms with due application of mind, therefore the order is also not a speaking order. We set aside the impugned order and remand the matter to Commissioner (A) to reconsider the application filed by the appellants for waiver of pre-deposit and decide the ....

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....:                7. Therefore, it follows that the stay order passed by the learned Collector (Appeals) is not final, on an application for modification, the learned authority has ancillary and inherent powers to modify the same. As the appellant's prayer has not been considered by the Collector (Appeals), it has resulted in failure of justice. The learned Collector (Appeals) also should have given a show cause notice prior to the dismissal of appeal calling upon the appellants to explain as to why their appeal should not be rejected for failure to comply with the stay order as per Section 35F of the Act. As there is failure on this aspect also, the matter requires to ....