2017 (3) TMI 177 - AT - Service Tax

Waiver of pre-deposit - Restoration of appeal - Held that - Allahabad High Court in the case of Bihariji Packaging 2011 (9) TMI 503 - Allahabad High Court have held that for non-compliance of the direction of pre-deposit under Section 35F, the appeal can be dismissed without going into the merits of the case - Appeal dismissed.

Summary

Issues:
- Non-compliance with stay orders leading to dismissal of appeal
- Appellant's argument for restoration based on financial difficulties
- Legal precedent supporting dismissal of appeal for non-compliance
- Interpretation of Section 35F of the Central Excise Act, 1944

Non-compliance with stay orders leading to dismissal of appeal:
The appellant filed a Misc application seeking restoration of the appeal, which was dismissed for non-compliance with stay orders dated 30.11.2015 and 18.03.2016, directing pre-deposit of 25% of the adjudged service tax demand within specified timelines. Despite extensions granted due to financial difficulties, the appellant failed to comply, resulting in the dismissal of the appeal on 09.06.2016.

Appellant's argument for restoration based on financial difficulties:
The appellant argued that the appeal should not be dismissed solely for non-compliance with the stay order, emphasizing the need for consideration of the merits of the case. Citing the judgment of the Hon'ble Bombay High Court in a specific case, the appellant contended that financial constraints should not preclude adjudication on the merits of the appeal.

Legal precedent supporting dismissal of appeal for non-compliance:
In contrast, the respondent relied on legal precedents, including judgments from the Hon'ble Allahabad High Court and the Hon'ble Bombay High Court, to assert that dismissal of the appeal due to non-compliance with pre-deposit requirements aligns with the provisions of Section 35F of the Central Excise Act, 1944. These judgments emphasized the discretionary power of the appellate authority to impose conditions safeguarding revenue interests and the consequence of non-compliance leading to dismissal without delving into the merits of the case.

Interpretation of Section 35F of the Central Excise Act, 1944:
The Tribunal analyzed the statutory provisions of Section 35F, highlighting the authority granted to appellate bodies to direct deposits and impose conditions to protect revenue interests. The Tribunal underscored that non-compliance with such directives could result in dismissal without engaging in the substantive merits of the appeal. Citing the binding judgment of the Hon'ble Allahabad High Court, the Tribunal dismissed the appellant's plea for restoration, affirming the dismissal of the appeal due to non-compliance with pre-deposit requirements.

In conclusion, the Tribunal upheld the dismissal of the appeal, emphasizing the significance of complying with statutory directives and the consequences of non-compliance as outlined in Section 35F of the Central Excise Act, 1944, in line with established legal precedents.