By TIOL News Service

BANGALORE, OCT 03, 2013: BY an order dated 28.12.2011, the Commissioner (Appeals), exercising discretion under Section 35F of the Central Excise Act, 1944 (in the stay application filed in the appeal by the assessee), ordered pre-deposit of the assessed service tax along with the applicable interest, by 13.1.2012, while granting waiver of the penalty component; and scheduled personal hearing of the main appeal to 16.1.2012 and further ordered that if the condition of per-deposit is defaulted, the appeal shall be disposed of without further opportunity of hearing.

The Tribunal noted the facts as:

“As apparent from the material on record in ST Appeal No.883/2012, the appellate authority had scheduled hearing of the stay petition on 28.12.2011, as requested by the assessee. On 28.12.2011, the stay application was disposed of ex-parte, granting waiver of pre-deposit only to the extent of the penalty component, on the condition of deposit of the assessed service tax and the applicable interest, by 13.1.2012. By the order dated 17.1.2012, the appeal was dismissed for failure of pre-deposit as ordered on 28.12.2011.”

On behalf of the appellant, it is contended that he did not receive notice (of the rescheduled hearing of the stay application on 28.12.2011), before that date. According to the appellant, the notice dated 14.10.2011, issued by the Commissioner (Appeals) scheduling hearing of the stay application on 28.12.2011, was received on 31.12.2011. This notice was addressed by Revenue to the assessee and to the Chartered Accountant M/s GPHK & Associates firm. The Chartered Accountants according to the appellant, had earlier addressed a letter dated 20.12.2011 (received by the appellate Commissioner on 21.12.2011) stating that they were preoccupied on 22.12.2011 (the earlier scheduled date of hearing) and therefore the stay application be adjourned to 28.12.2011.

On this, the Tribunal observed, “From the above facts, it is clear that the consultants of the appellant were aware that the hearing of the stay application could be scheduled to 28.12.2011, as requested by them. The appellant however asserts that no fresh notice of rescheduled hearing on 28.12.2011 was received prior to that date.”

The Tribunal prima facie found no infirmity either in the order of the Commissioner (Appeals) dated 28.12.2011 (directing pre-deposit of tax and interest) as a condition for waiver of pre-deposit of the penalty, nor with the order dated 17.1.2012 dismissing the appeal for failure of pre-deposit.

However, the Tribunal was inclined to offer another opportunity to pursue the appeal subject to the appellant depositing the service tax liability and interest thereon within six weeks.

(See 2013-TIOL-1452-CESTAT-BANG)