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TMI Blog2013 (10) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication and not the appeal - Thus, the order has been passed by the Bench presided over by the President is fully within its competence and it is incorrect to say that it travelled beyond its jurisdiction. Whether the Tribunal was justified in dismissing the Misc. Application holding that the Modification Application is in the nature of an application seeking review of the order on merits - the modification of the order has been sought on account of the non-consideration of the facts of the case and the grounds taken in support of the stay cum waiver application – Held that:- The appellant has not deposited the amount as directed by the Tribunal vide order - the date on which none was present on behalf of the appellant - The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER Heard Sri A.P.Mathur, learned counsel for the appellant and Sri Rajesh Singh Chauhan, learned counsel for the respondents. The present appeal has been filed by the appellant under Section 35-G of Central Excise Act, 1944, assailing the order dated 10.06.2013, passed on an application for modification of stay order bearing Service Tax Misc. Application No. 56359 of 2013 in Service Tax Appeal No. 3998 of 2012. The short controversy involved in this appeal is with regard to the condition of pre-deposit for hearing the appeal by the Tribunal and rejection of appeal for non-compliance of order for pre-deposit. Undisputed facts are that service tax has been levied upon the appellant and being aggrieved thereof, the appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odification Application is in the nature of an application seeking review of the order dated 01.01.2013 on merits. We find no authority for review of the order dated 01.01.2013. In spite of the fact that the modification of the order has been sought on account of the non-consideration of the facts of the case and the grounds taken in support of the stay cum waiver application? (iii) Whether the Hon'ble Tribunal was justified in ignoring the fact that the stay cum waiver application was listed for hearing for the first time on 01.01.2013 and the counsel could not appear as his train was late by six hours which was beyond his control and the fact was conveyed to the Hon'ble Bench during the course of hearing of the Misc. Application for mod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice. The appellant alongwith the appeal preferred an application for waiver under Section 35-F of the Central Excise Act, 1944 together with an application for stay. On 1.1.2013, when the case was taken up by the Tribunal, no one was present on behalf of the appellant. The Tribunal after examining the matter passed the order directing the appellant to deposit Rs.39 lacs within four weeks and stayed the realization of balance amount. Thereafter, the applicant moved an application dated 12.2.2013 for modification of the stay order dated 1.1.2013. This application was considered by the Bench presided over by the President of the Tribunal. While rejecting the application vide order dated 10.6.2013, the Tribunal observed that the modification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thus, the order has been passed by the Bench presided over by the President is fully within its competence and it is incorrect to say that it travelled beyond its jurisdiction. As regard the other contention, It is true that the appellant has not deposited the amount as directed by the Tribunal vide order dated 1.1.2013, the date on which none was present on behalf of the appellant. The appellant has stated that non-presence before the Tribunal was for the reason that the train reached late to New Delhi. It is also true that the appeal has been rejected in terms of the order dated 10.6.2013 whereby the application for modification was rejected. Before proceeding further, it may be noted that Section 35-F is not a condition precedent f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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