2019 (9) TMI 1195 - AT - Service Tax

Maintainability of appeal - requirement of pre-deposit - section 35F of Central Excise Act, 1944 - HELD THAT - The maintainability of appeal, with concurrent stay of recovery of remaining demand and/or fines/penalties, are subject to pre-deposit prescribed in section 35F of Central Excise Act, 1944. Prior to such prescription, the Tribunal was vested with discretion to stay further recovery till the outcome of the appeal was decided subject to such pre-deposit as was prescribed by the Tribunal. In the changed circumstances of statutory disbarment of recovery beyond that prescribed in section 35F of Central Excise Act, 1944, an application for early disposal is not only a circumventing of this statutory disbarment but also directly in breach of legislative disbarment. A plea by Revenue based only on revenue consideration for early hearing of appeal of assessee or individual does not merit consideration. Application rejected.

Summary

Issues:
- Application for out of turn disposal of appeal
- Grant of early hearing based on high stake revenue involved
- Maintainability of appeal and stay of recovery
- Statutory disbarment of recovery beyond prescribed limit
- Rejection of application for early disposal

Analysis:
- The judgment deals with an application for out of turn disposal of appeal no. ST/86234/2018 against an order-in-original dated 4th February 2016 of Commissioner of Service Tax-V, Mumbai. The Revenue sought early hearing of the appeal due to the high stake revenue involved in the case.
- The Tribunal considered the maintainability of the appeal and the stay of recovery of remaining demand and/or fines/penalties. The pre-deposit prescribed in section 35F of the Central Excise Act, 1944, was highlighted as a crucial factor in determining the stay of recovery.
- It was noted that the Tribunal previously had discretion to stay further recovery until the appeal's outcome, subject to the pre-deposit prescribed by the Tribunal. However, due to the statutory disbarment of recovery beyond the limit set in section 35F of the Central Excise Act, 1944, the application for early disposal was seen as an attempt to circumvent this statutory disbarment and breach legislative provisions.
- The judgment emphasized that a plea for early hearing based solely on revenue considerations does not merit consideration, as it goes against the statutory framework and legislative intent. Therefore, the application for out of turn disposal of the appeal was rejected.

This detailed analysis of the judgment provides a comprehensive understanding of the issues involved and the Tribunal's reasoning behind rejecting the application for early disposal based on revenue considerations.