2013 (11) TMI 590 - HC - Central Excise

Direction of Pre-deposit of Balance Amount Burden to prove - Whether the Appellate Tribunal was justified in directing pre-deposit of the balance amount of tax, as confirmed in the order and 25% of the penalty u/s 35F of the Central Excise Act, 1944 r.w. Section 83 of the Finance Act, 1994 Held that - The onus is upon the Appellant, to produce sufficient material before the Commissioner of Central Excise, either in the form of tax paid challans or otherwise through cogent documentary material for the purposes of establishing that the entire amount which is the subject matter of the demand has been paid - The Tribunal has not gone into this aspect, since it felt disabled from doing so on the ground that it would amount to a review of the earlier order - an opportunity to the Appellant given to establish through cogent material, to the satisfaction of the Commissioner, Central Excise what part of the demand has been paid - Order set aside and the matter restored for fresh consideration Decided in favour of Appellant.

Issues:
1. Justification of directing pre-deposit of balance tax amount and penalty by the Appellate Tribunal.
2. Review of the order by the Tribunal based on the Appellant's contentions.
3. Verification of the payment of service tax dues by the Appellant.
4. Consideration of documentary evidence and tax challans by the Commissioner, Central Excise.
5. Tribunal's determination of outstanding dues and penalty payment by the Appellant.

Analysis:
1. The Appellant challenged the orders of the CESTAT directing pre-deposit of the balance tax amount and 25% penalty. The Tribunal initially waived the pre-deposit requirement based on the Appellant's statement of paying the entire service tax. However, subsequent verification revealed that only a partial amount was paid, leading to the Tribunal's decision to recall the waiver and direct the Appellant to make the necessary pre-deposit.

2. The Appellant contended that they had paid service tax on disputed advances and provided a detailed explanation of the payments made. The Tribunal, in its order dated 15 October 2012, dismissed the application for modification, stating that accepting the Appellant's contentions would amount to a review of the order, which was impermissible in law.

3. The case revolved around the Appellant's assertion of having paid the entire service tax dues. The Tribunal emphasized the need for the Appellant to provide sufficient material, such as tax paid challans, to establish the payment of the demanded amount. The Tribunal refrained from verifying the payment, citing it as a review of the earlier order, and directed the Appellant to prove the payment to the Commissioner, Central Excise.

4. The High Court directed the Appellant to produce documentary evidence, including tax challans, before the Commissioner for verification of the payment of service tax dues amounting to Rs. 18.08 crores. The Commissioner was instructed to report the verification results to the Tribunal, enabling a decision on the waiver of pre-deposit of penalty and interest based on the payment verification.

5. In case the verification revealed outstanding dues, the Appellant was directed to pay the balance amount within a specified period, along with 25% of the penalty demanded. The High Court set aside the previous order and instructed the Tribunal to reconsider the application for modification based on the directions provided, ultimately disposing of the appeal without costs.

This detailed analysis highlights the legal proceedings, the Tribunal's decisions, and the High Court's directions regarding the verification and payment of service tax dues by the Appellant, ensuring a comprehensive understanding of the judgment.

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