2011 (12) TMI 370 - HC - Central Excise

Stay application - Demand - the prayer of the petitioner is that as the application for waiver of pre-deposit and stay against the orders of the revenue authorities be revived and the petitioner be permitted to argue the same on merits before the Tribunal - Counsel for the petitioner, in particular, pointed out that in respect to the application made by the petitioner to the Tribunal under Right to Information Act, the Registrar of the Tribunal conveyed that the orders dated 31st May 2010 and 11th August 2010 were dispatched but were returned back to the office with the postal stamp of non-delivery remark - It is clarified that this date is fixed only as a preliminary date and it would be entirely the discretion of the Tribunal to fix the date of further or future hearings according to their convenience - Petitions are disposed of

Summary

Issues:
1. Dismissal of appeal by CESTAT for non-compliance of Sec. 35F of the Central Excise Act, 1944.
2. Dismissal of application for restoration of appeal and modification by CESTAT.
3. Lack of notice of hearing before the Tribunal as claimed by the petitioner.

Analysis:
1. The petitioner, a partnership firm, had a demand of service tax confirmed by the adjudicating authority, along with interest and penalties. The appeal to the Commissioner (Appeals) was dismissed, leading to an approach to CESTAT. However, the appeal was dismissed due to non-compliance with Sec. 35F, as the petitioner failed to deposit the entire dues within the specified time frame, resulting in the dismissal of the appeal.

2. Subsequently, the petitioner sought restoration of the appeal and modification of the pre-deposit condition, which was also dismissed by CESTAT. The Tribunal cited the petitioner's repeated absence despite notices sent for hearings, leading to the dismissal of the application. The petitioner then approached the High Court seeking revival of the application for waiver of pre-deposit and stay against the revenue authorities' orders to argue on merits before the Tribunal.

3. The petitioner contended that they were not served with notices of hearing by the Tribunal, emphasizing that even if notices were dispatched, they were never received. The petitioner's counsel highlighted that orders dispatched by the Tribunal were returned undelivered, indicating a lack of communication with the petitioners. The High Court, considering the lack of proper communication, set aside the previous orders and revived the stay application and application for waiver of pre-deposit for the Tribunal to reconsider on merits. The Court directed a preliminary hearing on a specific date, mandating the petitioner or their counsel to be present without further notice, allowing the Tribunal to proceed ex parte if there is no representation.

In conclusion, the High Court allowed the petitioner an opportunity to present their case before the Tribunal, emphasizing the importance of proper communication and granting a chance for the petitioner to argue their applications for waiver of pre-deposit and stay. The Court's directions aimed to ensure a fair hearing process, setting a preliminary date for the Tribunal to consider the applications without the need for additional notices.