2016 (6) TMI 621 - AT - Service Tax

Waiver of pre-deposit - appellants sought rectification of mistake/modification of stay order - Held that - the contention of the petitioner/appellant that the Tribunal committed an error and observed that petitioner has handed over 42 flats to the land owner does not appear to be correct. During the hearing, the Bench asked the learned counsel to point out in the impugned order, the relevant portion in which the valuation /demand is arrived at by observing that the petitioner has handed over 30 flats only to land owner. However, the learned counsel could not do so. Instead, he submitted that in the Annexures/tables to the show cause notice on counting the number of flats given to land owner, it would come to 30 flats. With regard to the contention of the appellant that the Bangalore Bench of Cestat has granted entire waiver of pre-deposit, we are not bound by the said decision in stay application, as it is not a precedent being an interim order and further, from the facts presented by the case in hand, it appears that the facts are not identical. The stay order does not call for any modification/rectification. The appellants are therefore, directed to comply with the direction of pre-deposit passed in the stay order dated 14-12-2015/12-04-2016 within a period of 4 weeks. - No relief to the assessee.

Summary

Issues:
Rectification of mistake/modification of stay order, Error in the amount to be deposited, Waiver of pre-deposit, Compliance with the stay order.

Analysis:

1. Rectification of mistake/modification of stay order:
The appellant filed a miscellaneous application seeking rectification of mistake/modification of the stay order. The appellant argued that the Tribunal mistakenly stated in the Stay Order that the appellant handed over 42 flats to the landowner, whereas the correct number was 30 flats. The appellant sought a reduction in the amount to be deposited based on this factual error.

2. Error in the amount to be deposited:
The Tribunal examined the contentions raised by the appellant regarding the error in the amount to be deposited. The Tribunal noted that during the hearing, the appellant could not provide evidence from the impugned order supporting the claim that only 30 flats were handed over. The Tribunal emphasized that a detailed examination of annexures/tables and construction agreements would be necessary during the final hearing. Ultimately, the Tribunal concluded that there was no error in the stay order that required rectification.

3. Waiver of pre-deposit:
The appellant cited a decision by the Bangalore Bench of Cestat where the requirement of pre-deposit was waived in a similar case. However, the Tribunal clarified that they were not bound by the Bangalore Bench decision as it was an interim order and the facts of the present case were not identical to that case. The Tribunal emphasized that the decision to waive pre-deposit was not applicable in this instance.

4. Compliance with the stay order:
After considering the arguments presented by both parties, the Tribunal held that the stay order did not require any modification or rectification. The appellant was directed to comply with the direction of pre-deposit within four weeks from the date of the judgment and report compliance. Failure to comply or report would result in the dismissal of the appeal for failure to pre-deposit without further notice.

In conclusion, the Tribunal upheld the original stay order, rejecting the appellant's request for modification based on the alleged error in the number of flats handed over and the waiver of pre-deposit granted in a different case. The appellant was instructed to adhere to the pre-deposit directive within the specified timeframe to avoid dismissal of the appeal.