2015 (11) TMI 602 - HC - Central Excise

Waiver of pre deposit - Mandatory pre deposit - 7.5% pre deposit - Held that - In the case of Fifth Avenue Sourcing (P) Ltd., vs. Commissioner of Service Tax reported in 2015 (7) TMI 391 - MADRAS HIGH COURT , I have directed the petitioner therein to file an appeal before the CESTAT along with stay application, without making pre-deposit of 7.5% of the tax amount confirmed against the petitioner, within a period of two weeks from the date of receipt of a copy of that order. But, as far as the present case is concerned, since the petitioner has got enough time to file an appeal before the appellate authority, the petitioner is directed to file an appeal before the appellate authority along with stay application and on such appeal being filed by the petitioner along with stay application, the appellate authority is hereby directed to entertain the same without insisting of pre-deposit of 7.5% of the tax amount confirmed against the petitioner. - Decided in favour of assessee.

Summary

Issues: Challenge to impugned order in original on grounds of arbitrariness and illegality. Applicability of Rule 10(a) to job worker. Consideration of previous tribunal decisions. Direction for filing appeal before appellate authority without pre-deposit.

In this case, a writ petition was filed challenging the impugned order in original passed by the Commissioner of Central Excise as arbitrary, illegal, and unsustainable in law. The petitioner argued that the issue had already been decided by the Allahabad Tribunal, stating that Rule 10(a) would not apply to a job worker who has completed the job work and returned it to the principal manufacturer. The petitioner also cited a decision by the Customs, Excise & Service Tax Appellate Tribunal in their previous case, where a waiver of total demand was granted. The High Court noted that the decision of the Allahabad Tribunal was not brought to the notice of the respondent, and the subsequent decision of the Chennai Tribunal could not be considered. Consequently, the court directed the matter to be appealed before the appellate authority for further consideration.

In a similar case, the court had previously directed a petitioner to file an appeal before the CESTAT without making a pre-deposit. In the present case, the petitioner was given a directive to file an appeal before the appellate authority along with a stay application, without the need for a pre-deposit of the tax amount confirmed against them. The court emphasized that the appellate authority should entertain the appeal without insisting on the pre-deposit. Therefore, the writ petition was disposed of with the direction for filing an appeal, and no costs were awarded in the case.