2016 (11) TMI 58 - AT - Service Tax

Restoration of appeal - stay and waiver of pre-deposit u/s 35F of Central Excise Act, 1944 - modification in the terms of pre- deposit? - Held that - even though the decision of the Tribunal, viz., Petronet LNG Ltd v. Commissioner of Service Tax 2013 (11) TMI 1011 - CESTAT NEW DELHI , may not favour Revenue, but that would be subject to the requirement that the appeal stands restored. The judgments cited by the learned Authorised Representative Adison Textiles Pvt Ltd v. CESTAT 2007 (9) TMI 606 - ALLAHABAD HIGH COURT would place the applicant within the ambit of the amended provisions of section 35F of Central Excise Act, 1944. The pre-deposit mandated in section 35F of Central Excise Act, 1944 is the same as that directed by this Tribunal on the earlier occasion. We, therefore, do not find any justification for modifying the terms of pre-deposit. The applicant is directed to deposit ₹ 5 crores within eight weeks and report compliance thereafter latest by 15th November 2016 following which the appeal will stand restored and the plea for raising additional ground sought for in the application shall be taken up thereafter - appeal disposed off.

Summary

Issues:
- Application for additional grounds in appeal
- Modification of order of pre-deposit under section 35F of Central Excise Act, 1944
- Compliance with pre-deposit for restoration of appeal

Analysis:

1. The judgment deals with a miscellaneous application seeking additional grounds to be included in an appeal filed against an order passed by the Commissioner (TAR), Mumbai. The appeal was related to a dispute similar to another case before the Tribunal. The applicant sought modification of the order of pre-deposit under section 35F of the Central Excise Act, 1944.

2. The Tribunal noted that a pre-deposit of ?5 crores had been ordered earlier, which was not complied with leading to the dismissal of the appeal. However, the High Court allowed the applicant to approach the Tribunal for modification of the pre-deposit order. The Tribunal emphasized that compliance with the pre-deposit order was essential for further proceedings.

3. The Authorized Representative relied on legal precedents to oppose the modification of the pre-deposit order. Citing decisions from various High Courts and Tribunals, it was argued that the amended section 35F applies retrospectively, and compliance with pre-deposit is necessary for restored appeals.

4. The Tribunal considered the arguments and held that there was no justification for modifying the terms of the pre-deposit order. The applicant was directed to deposit ?5 crores within a specified timeline, failing which the appeal would not be restored. Compliance with the pre-deposit was deemed necessary for the consideration of additional grounds in the appeal.

5. The Tribunal referred to a specific case where the decision may not favor the Revenue but stressed that compliance with the pre-deposit order was a prerequisite for the restoration of the appeal. The Tribunal concluded that the applicant must adhere to the pre-deposit directive for the appeal to be restored, and only then would the additional grounds be considered.

6. In conclusion, the Tribunal ordered the applicant to comply with the pre-deposit directive within a specified timeframe. Failure to do so would result in the appeal not being restored. Once compliance was reported, the Tribunal would consider the plea for raising additional grounds in the appeal.

This detailed analysis of the judgment provides a comprehensive understanding of the issues involved and the Tribunal's decision regarding the modification of the pre-deposit order and the compliance required for the restoration of the appeal.