2015 (11) TMI 1188

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....ved by Order-in-Original dated 13.6.2012 filed an appeal before the Commissioner (Appeals) alongwith an application for stay. The then Commissioner (Appeals) heard and disposed the application for stay vide stay order dated 29.10.2013 directing the respondents to deposit the entire amount of service tax of Rs. 30,24,642/- as pre-deposit within a period of three weeks. The respondent did not comply with the order. They filed an application dated 13.11.2013 seeking modification of stay order. This application was heard and disposed vide impugned order dated 18.2.2015 by which the Commissioner (Appeals) modified the earlier stay order and granted full waiver of pre-deposit. 3. In this appeal, the Revenue challenges this modification of stay....

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....held by the Tribunal that Commissioner (Appeals) has power to rectify mistake in regard to pre-deposit order. 5. I have heard the rival submissions and perused the records carefully. 6. As the relevant provisions of law do not provide for an appeal against an interim order passed by the Commissioner (Appeals) this Bench entertained a doubt whether this appeal filed by the Revenue against the interim order/stay order passed by Commissioner (Appeals) is maintainable or not. As stated, the relevant provisions of law do not provide that an appeal would lie before the Tribunal against an interim order of pre-deposit passed by the Commissioner (Appeals). The observation of CESTAT in the case of M/s.Girnar Transformer Ltd. (supra) would give....

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....ion 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) In view of the decision of the Punjab and Haryana High Court in Surya Pharmaceutical Ltd. (supra), since an order of pre-deposit passed ....

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....their view how the judgement laid in cases of Macro Marvel case and A.S.Sikarwar are applicable to their case. It is also pointed out that the said judgements have been wrongly distinguished by the Commissioner (Appeals). It is seen from the application that the basic contention of the respondents is that they are engaged in construction of independent residential buildings, which were not connected in plinth, had separate boundary wall, entrance and separate electricity and water connection and thus will not fall into the category of construction of residential complex coming under section 65 (30a) read with section 65 (91a) an section 65 (105) (zzzh) of the Finance Act, 1994. In the stay order dated 29.10.2013, the Commissioner (Appeals) ....