2013 (10) TMI 133 - AT - Service Tax

Restoration of the Appeal Held that - There was apparent a clearly casual and negligent on the part of the appellant - The appeal was dismissed for failure of pre-deposit by the order which suffered from no error since demonstrably there was a default on the part of the appellant in complying with the condition of pre-deposit - However, the appellant now seeks indulgence since it was pleaded that it had substantial merit in the appeal - It would be appropriate to recall of the order (dismissing the appeal for failure of pre-deposit), on condition that the petitioner / appellant deposits the entire adjudicated liability set out in the adjudication order to the extent confirmed by the order of CESTAT.

Summary

Issues: Restoration of appeal dismissed for failure of pre-deposit.

Analysis:
The appeal was filed by the assessee against the order of the appellate Commissioner but was dismissed for failure of pre-deposit. The notices of hearing and stay application were returned unserved as the appellant had shifted its address without updating the authorities. The appellant sought the restoration of the appeal, stating that they were unaware of the developments due to the address change. The appellant acknowledged the default but pleaded for indulgence due to the appeal's substantial merit.

The appellant's representative argued that the deposit directed by the order was made after a significant delay, questioning the appellant's conduct. The Tribunal noted the appellant's negligence in complying with the pre-deposit condition but considered the request for recall based on the appeal's merit. The Tribunal decided to recall the order of dismissal on the condition that the appellant deposits the entire adjudicated liability within a specified timeframe, taking into account the amount already deposited. The appellant was given a deadline for compliance, failing which the appeal would be rejected for non-compliance.

The Tribunal emphasized the importance of compliance and notified the appellant's counsel present in court about the obligations under the order. The decision was made to recall the dismissal order, subject to strict compliance with the deposit conditions within the specified timeline. The appeal was disposed of accordingly, with clear instructions for the appellant to meet the deposit requirements to avoid further dismissal.