Custom, Excise & Service Tax Tribunal
M/S Sri Lakshmi Prabha Engg & ... vs C.C.E. & S.T., Visakhapatnam-I on 31 October, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order No . 26892 / 2013 Appeal(s) Involved: ST/1155/2012-DB [Arising out of Order-in-Original No. VIZ-STX-001-COM-002-12 Dated 11/01/2012 passed by Commissioner of Central Excise, Customs & Service Tax, Visakhapatnam] M/s SRI LAKSHMI PRABHA ENGG & FABRICATION WORKS PLOT NO-74,BLOCK-B, AUTONAGAR, VISAKHAPTNAM Appellant(s) Versus C.C.E. & S.T., VISAKHAPATNAM-I Respondent(s)
Appearance:
Mr. G. P. Sastry, Advocate For the Appellant Mr. N. Jagdish, Superintendent(AR) For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI ANIL CHOUDHARY, JUDICIAL MEMBER ________________________________________ Date of Hearing: 31/10/2013 Date of Decision: 31/10/2013 Order Per : B.S.V. Murthy Vide Misc. order No. 25080/2013 dated 26.4.2013, this Tribunal had passed an order requiring the appellant to deposit an amount of Rs. 25 lakhs within six weeks (out of the service tax demand of Rs. 94,71,914/-) and report compliance to the Bench on 17.7.2013. When the matter was came up for noting compliance on 2.8.2013, learned advocate had made a request for adjournment to 25.9.2013. When the matter came up for hearing on 25.9.2013, nobody was present nor was there any compliance report on record. This Tribunal after noting the absence of the appellant and after perusing the records and hearing learned AR on behalf of Revenue, directed the appellant to show-cause as to why the appeal should not be dismissed for non-compliance of stay order and for this purpose hearing was fixed on 28.10.2013. When the matter called up on 28.10.2013, it was found that the counsel had requested for adjournment to 31.10.2013. Accordingly matter was called today.
2. Learned counsel for the appellant submitted that this Tribunal had not taken into account an amount of Rs. 17.51 lakhs paid by them towards service tax for the period 2010-11 on the ground that the claim of the excess payment was unsubstantiated. The Tribunal had also observed that according to learned counsel, the duty demanded for the normal period comes to Rs. 25 lakhs and admitted tax liability is Rs. 26.65 lakhs. After recording of these facts, the Tribunal had directed the appellant to pre-deposit a sum Rs. 25 lakhs. Therefore, after going through the relevant observations and stay order, what we find is that the Tribunal took note of all the facts that there was an amount of Rs. 25 lakhs for the normal period and in addition, there was an admitted liability of Rs. 26.65 lakhs. What the Tribunal did was to add Rs. 9.14 lakhs which was their outstanding liability. According to the appellant, after adjustment towards the payment, pre-deposit was fixed at Rs. 25 lakhs taking note of the fact that the demand for the normal period was 25 lakhs and admitted liability was Rs. 26.65 lakhs, when we take note of the fact that interest liability is to be discharged on admitted liability and therefore, it cannot be said that fact of payment of Rs. 17.51 lakhs was totally ignored even though unsubstantiated. However, it is to be noted that when the matter was called for reporting compliance on 2.8.2013, there was a representation submitted by appellant made before the Tribunal at time of reporting compliance before the Deputy Registrar on 10.7.2013 wherein they had indicated that there was a payment of Rs. 17.51 lakhs and enclosed a copy of the challan as evidence. However, the matter was adjourned to 25.9.2013 and on 25.9.2013, when the matter was called, nobody was present on behalf of the appellant nor there was any request for adjournment. In these circumstances, a show-cause came to be issued wherein it was clearly observed that the Tribunal had heard authorized representative and perused records which would mean that all the copies of challan produced and representation made on 10.7.2013 had been taken into account while passing the order.
3. Even though learned counsel vehemently argued that the amount of Rs. 17.51 lakhs should be taken into account and this has to be deducted from Rs. 25 lakhs and thereafter, the appellant should be put complied with the stay order, we find that in view of the specific observation in the order that the decision to issue show-cause was taken on the ground that the stay order was not complied with and in view of the specific observation of the perusal of the records if we consider the submissions today, in our opinion, it would amount to review of our own order which we have no power today. It was submitted by learned counsel that today, he also produced ST-3 Return in addition to challan which has been taken into consideration. We take note of all the facts that the challan produced with the submission on 10.7.2013 and ST-3 return produced today were available and related to the period prior to the date of hearing and none of them is a new document except challan dated 5.7.2013 relating to payment of Rs. 7,48,705/-. Since no new material brought on records and all the submissions were taken note of and the order passed and even if the order is wrong or correct, in the absence of power to review our own order and when the mistake is not apparent from record, we cannot interfere with the order already passed.
4. In view of the fact that the appellant has not deposited the entire amount as per the order of the Tribunal, the appeal is rejected for non-compliance of requirement of provisions of Section 35F of the Central Excise Act made applicable to the Section 83 of the Finance Act, 1994.
(Operative portion of the order has been pronounced in open court) (ANIL CHOUDHARY) JUDICIAL MEMBER (B.S.V. MURTHY) TECHNICAL MEMBER /vc/