2013 (9) TMI 865 - AT - Service Tax

Waiver of pre-deposit - Lower appellate authorities dismissed the appeal for non deposit of predeposit as ordered - Held that - As the lower appellate authority had exercised discretion directing deposit of tax component, a formal order having consequences has come into force. Qua the provisions of Section 86 of the Act, the order of the lower appellate authority (Commissioner (Appeals) directing pre-deposit is not appealable. The appellant has also not challenged the order dated 20.6.2011 before this Tribunal. It is axiomatic that a right of appeal is a creature of the statute. In the absence of any right of appeal provided against the order of the lower appellate authority directing pre-deposit no appeal could have been preferred before this Tribunal in any event. If aggrieved by the order of the lower appellate authority (directing pre-deposit), the assessee must seek remedy elsewhere other than before this Tribunal. The order of the lower appellate authority dated 20.6.2011 (directing pre-deposit of the adjudicated quantum of tax) is not contended to be an order patently beyond the jurisdiction of the Commissioner (Appeals) and therefore a nullity. - There was failure of pre-deposit and consequently in view of the provisions of Section 35F of the Central Excise Act, 1944, the order of Commissioner (Appeals) dismissing the appeal is impeccable and warrants no interference in the present appeal. The appeal is therefore misconceived and is accordingly dismissed, but without costs. - Decided against assessee.

Summary

Issues:
- Dismissal of appeal for non-compliance with pre-deposit requirement
- Challenge to lower appellate authority's order rejecting appeal
- Comparison with similar cases where relief was granted
- Statutory provisions regarding pre-deposit in appeals
- Exercise of discretion by appellate authority in directing pre-deposit

Issue 1: Dismissal of appeal for non-compliance with pre-deposit requirement:
The judgment discusses a case where the appellant failed to comply with a stay order directing pre-deposit of service tax liability. Subsequently, the appellate authority dismissed the appeal for non-compliance with the pre-deposit requirement specified in the order. The court found no error in the dismissal of the appeal due to non-compliance with the pre-deposit condition.

Issue 2: Challenge to lower appellate authority's order rejecting appeal:
The only challenge in the present appeal was against the order of the lower appellate authority rejecting the appeal for failure of pre-deposit. The court found no grounds to interfere with the lower appellate authority's decision to dismiss the appeal due to non-compliance with the pre-deposit requirement.

Issue 3: Comparison with similar cases where relief was granted:
The appellant cited cases where relief was granted in similar circumstances. Reference was made to cases where the Tribunal had granted relief based on the merits of the case and the balance of convenience, highlighting instances where the lower appellate authority's decision was invalidated due to lack of consideration of the case's merits.

Issue 4: Statutory provisions regarding pre-deposit in appeals:
Section 35F of the Central Excise Act, 1944 mandates that a person appealing against any decision or order must deposit the duty demanded or penalty levied. The provision allows for the waiver of pre-deposit in cases of undue hardship, with the appellate authority having discretion to impose conditions to safeguard revenue interests.

Issue 5: Exercise of discretion by appellate authority in directing pre-deposit:
The judgment emphasizes that the lower appellate authority's order directing pre-deposit is not appealable under Section 86 of the Act. The appellant's failure to challenge the pre-deposit order before the Tribunal deprived them of the right to appeal. The court clarified that the order of the lower appellate authority directing pre-deposit, unless challenged and set aside through appropriate proceedings, must be complied with, leading to the dismissal of the appeal in the present case.

In conclusion, the judgment upholds the dismissal of the appeal due to the appellant's non-compliance with the pre-deposit requirement, emphasizing the importance of adhering to statutory provisions and the exercise of discretion by the appellate authority in such matters.