2019 (2) TMI 950 - AT - Service Tax

Restoration of appeal - Non-compliance of the stay order - dismissal of appeal by ex-parte order for default of the stay order - Held that - There is no deliberate default on the part of the appellant as was suffering from serious ailment and his work was also practically at stand still, during the relevant period - Further, Hon ble Allahabad High Court in the case of Vijay Kumar 2018 (2) TMI 1259 - CESTAT NEW DELHI have held that this Tribunal should not dismiss appeal for failure to comply with the order of pre-deposit. The appeal was filed prior to 1st Aug. 2014, and under the pre-amended Section 35F, there was no pre condition that Tribunal cannot entertain appeal without making of pre-deposit. Further Tribunal was directed by higher courts the disposal for appeal on merit even in absence of pre deposit - restoration of the appeal allowed.

Issues:
1. Recall of Final Order and modification of Interim Order.
2. Non-compliance of stay order leading to dismissal of appeal.
3. Appellant's health condition affecting regular work attendance.
4. Nature of appellant's work and applicability of service tax.
5. Alleged circumstances beyond appellant's control for default.
6. Delay in filing restoration application opposed by Revenue.
7. Pre-deposit requirement and appeal dismissal for non-compliance.

Detailed Analysis:
1. The appellant filed a Misc. application for recalling the Final Order and modifying the Interim Order. The Tribunal dismissed the appeal on 31st December 2015 due to non-compliance with the stay order, which required a pre-deposit of 25% of the service tax liability within a specified time frame.

2. The appellant, a sole proprietor, cited health issues including liver cirrhosis, leading to his inability to attend to work regularly. Medical evidence supported his health condition, indicating treatment and transplantation. The appellant argued that his work of bore well and water pipeline replacement for Delhi Jal Board was not taxable as per Tribunal decisions.

3. The appellant's counsel highlighted the appellant's reduced turnover during the relevant financial years and argued that the appellant's default was not deliberate but due to circumstances beyond his control, primarily his health condition.

4. The Revenue opposed the restoration application, citing delays and referring to legal precedents affirming dismissal for non-compliance. The Tribunal considered the arguments and legal precedents cited by the Revenue.

5. After considering the contentions, the Tribunal found no deliberate default on the appellant's part due to his serious ailment. The Tribunal referred to Supreme Court and High Court judgments emphasizing that appeals should not be dismissed solely for non-compliance with pre-deposit orders.

6. The Tribunal noted that the appeal was filed before a specific amendment, allowing the Tribunal to entertain appeals without a pre-deposit. In the interest of justice, the Tribunal allowed the restoration of the appeal and modified the pre-deposit amount to ?10 lakhs, with a compliance deadline and a cost to be paid to the Prime Minister National Relief Fund.

7. The Tribunal directed the appellant to comply with the modified order by a specified date and set a final hearing date. The decision was dictated and pronounced in open court, concluding the judgment.

This detailed analysis covers the issues raised in the judgment, including the legal arguments, factual circumstances, and the Tribunal's reasoning leading to the final decision.

← Previous Next →