Custom, Excise & Service Tax Tribunal
Malwan Construction Company vs Commissioner Of Cgst-Jaipur on 6 July, 2023
Author: Dilip Gupta
Bench: Dilip Gupta
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. 1
Service Tax Appeal No. 50362 of 2018
(Arising out of Order-in-Appeal No. 407/(SM)ST/JPR/2017 dated 09.11.2017
passed by the Additional Commissioner, Central Excise, Jaipur-I)
M/s. Malwan Construction Company .....Appellant
120, Jalpura, Sansar Chandra Road,
Jaipur
VERSUS
Commissioner, Central Goods & Service
Tax Commissionerate , Jaipur .....Respondent
APPEARANCE:
None for the Appellant Mr. Harshvardhan, Authorized Representative of the Department CORAM : HON'BLE MR. JUSTICE DILIP GUPTA, PRESIDENT HON'BLE MS. HEMAMBIKA R. PRIYA, MEMBER (TECHNICAL) Date of Hearing/Decision: 06.07.2023 FINAL ORDER NO. 50877/2023 JUSTICE DILIP GUPTA The order dated November 08, 2017 passed by the Commissioner (Appeals) Central Excise, Jaipur1, rejecting the appeal for non-compliance of the requirement of pre-deposit under section 35F of the Central Excise Act, as made applicable to service tax matters by section 83 of the Finance Act, 19942, has been assailed in this appeal.
2. Notice of the appeal was sent to the appellant as also to the learned counsel appearing for the appellant by speed post on March 21, 2023. The Office has reported, on the basis of the
1. the Commissioner (Appeals)
2. the Finance Act 2 track consignment report, that the notices fixing April 24, 2023 as the date for hearing were served upon the appellant and the learned counsel for the appellant on March 24, 2023. On April 24, 2023, the appeal was direct to be listed on July 06, 2023.
3. Today, when the matter has been called out, no one has appeared on behalf of the appellant to press the appeal.
4. The appeal was filed before the Commissioner (Appeals) on August 06, 2014 when the Commissioner (Appeals) was vested with the discretion to waive the pre-deposit, subject to certain conditions. While exercising this power, the Commissioner (Appeals), by an order dated December 23, 2014, directed the appellant to deposit an amount of Rs.12 lakhs within three weeks.
5. Instead of depositing the said amount, the appellant moved an application for modification of this order but the application was rejected by an order dated October 17, 2014 and it was further directed that the appellant may deposit the amount pursuant to the order dated December 23, 2014 within one week, failing which the appeal would be disposed of.
6. The appellant did not deposit the said amount and so by an order dated December 08, 2017 the appeal was dismissed by the Commissioner (Appeals). The relevant portion of the order passed by the Commissioner (Appeals) is as follows:
"3. Considering the submissions made by the appellant, stay order No. 35(VC)ST/JPR-1/2013 dated 23.12.2013 in the matter was issued whereby the appellant was directed to deposit an amount of Rs. 12,00,000/- within three weeks from the date of communication of stay order and produce evidence by 06.01.2014.
4. The appellant submitted an application for modification of stay order No. 35(VC)ST/JPR-1/2013 dated 23.12.2013 on the ground that they are short of funds and even the Banks are not ready to lend out money for the purpose.3
5. Personal hearing for modification of stay was held on 15.10.2014 when Shri Pankaj Malik, chartered accountant appeared during hearing. He argued that in similar issue CESTAT granted full waiver of pre-deposit in case of M/s Sunsine, stay order No. 57023/2013 dated 05.03.2013 and in case of M/s Unique Construction, Stay Order No. 59773/2013 dated 12.11.2013. He added that even the issue finally decided in favour of assessee in case of M/s Subhash Khandelwal & Sons3.
6. After considering the submissions the appellant was directed to deposit the amount as per stay order dated 23.12.2013 within a week of receipt of order vide Order for Modification passed under C.No. APPL/JPR-I/ST/JP/41/II/12/2131-32 dated 21.10.2014.
7. Final Hearing in the matter was held on 22.08.2017 when Shri Malik, chartered accountant appeared for the same, wherein he admitted that party has not complied with the Stay Order
8. I have carefully gone through the impugned order, appeal memorandum and submission made by the appellant. I find that the appellant have not complied with the condition of stay order mentioned above. It is well settled law that no appeal can be maintained, entertained or finally heard by the Commissioner (Appeals) unless provisions of pre-deposit as explained in the Section 35-F of the Central Excise Act, 1944, made applicable to the service tax matters vide Section 83 of the Finance Act, 1994 . Therefore, without going into the merit of the case, the said appeal is liable to be dismissed for non-compliance of the provisions of the Section 35-F of the Central Excise Act, 1944.
9. In view of the above, I reject the appeal for non-compliance of provisions of Section 35F of the Central Excise Act, 1944 made applicable to the service tax matters vide Section 83 of the Finance Act, 1994."
7. The requirement of pre-deposit is mandatory in nature. Despite time having been granted, the appellant did not make the deposit. The Commissioner (Appeals), therefore, committed no illegality in dismissing the appeal. This appeal is, accordingly, dismissed.
(JUSTICE DILIP GUPTA) PRESIDENT (HEMAMBIKA R. PRIYA) MEMBER (TECHNICAL) Archana
3. 2011(24) STR-461(Tri Del)