2008 (5) TMI 387 - AT - Service Tax

Appellate Tribunal - Appeal filed by appellant was adjourned, in view of pendency of appeal in another case on same facts in High Court. Appellant filed application for modification of said order on ground that it was passed on mis-representation of facts by revenue and that there was no interim order of High Court in that regard. Appellant further prayed for return pre-deposited amount in case appeal was not heard on merit. Held that - since there was no interim order of High Court to the contrary, two vies could always be taken and it was open to Tribunal to hear appeal in such matters.

Summary

Issues:
1. Application for modification of the order dated 30-1-2008
2. Misrepresentation of facts leading to interim order
3. Benefit of Larger Bench decision in the case of Grasim Industries
4. Postponement of hearing till decision of Madhya Pradesh High Court
5. Return of pre-deposited amount

Analysis:

1. The appellant filed an application seeking modification of the order dated 30-1-2008, where the hearing of the appeal was adjourned sine die due to the pendency of the appeal in the case of Grasim Industries in the High Court of Madhya Pradesh. The appellant argued that the appeal referred to in the order was different from the Larger Bench decision in the case of Grasim Industries, and hence, the interim order was based on misrepresentation of facts. The appellant requested the appeal to be heard to seek the benefit of the Larger Bench decision. The Tribunal acknowledged that two views could be taken in such matters but decided to postpone the hearing until the decision of the Madhya Pradesh High Court, given the similarity between the subject matter of the Tribunal's order and the Larger Bench decision.

2. The appellant also requested the return of the pre-deposited amount if the appeal was not heard on merit. However, the Tribunal clarified that as per section 35F of the Central Excise Act, the appellant is required to pre-deposit the duty demand and penalty, if any, subject to the Tribunal's order. Without complying with the pre-deposit requirement, the appeal is not maintainable. Therefore, the Tribunal rejected the appellant's request for the return of the pre-deposited amount, citing legal provisions.

3. In conclusion, the Tribunal rejected the miscellaneous application filed by the appellant, maintaining the decision to postpone the hearing until the Madhya Pradesh High Court's decision and upholding the requirement of pre-deposit as per the Central Excise Act. The Tribunal emphasized the importance of following legal procedures and requirements for the appeal to be considered maintainable, despite the appellant's arguments regarding misrepresentation of facts and the benefit of a Larger Bench decision.