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TMI Blog2015 (11) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... re amount, distinguished the judgement laid in Macro Marvel [2008 (9) TMI 80 - CESTAT, CHENNAI] and A.S.Sikarwar cases [2012 (11) TMI 1000 - CESTAT, NEW DELHI] basing upon this conclusion arrived that there are common facilities. In the application for modification, the respondents have also pointed out yet another judgement rendered in the case of Inderjeet Singh Jadon in [2015 (11) TMI 1143 - CESTAT NEW DELHI]. Therefore, by the impugned order, in my opinion, the Commissioner (Appeals) has not exercised power of review, but has merely rectified a mistake apparent from the record, which was within his power as laid in the case of M/s.Girnar Transformers Ltd. - Decided against Revenue. - Appeal No. ST/51955/2015-ST-SM With ST/CO/52015/2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) has no power to review his own decision; he may entertain an application for rectification/modification of a pre-deposit order, in case of an error apparent on the face of record. That the impugned order is not passed in the nature of rectification of mistake but is in the nature of review of his own decision. That there is no mistake apparent in the stay order dated 29.10.2013. 4. Per contra, the learned counsel appearing for the respondent reiterated the contentions raised in the cross objections filed. He submitted that in the earlier stay order the Commissioner (Appeals) erred in appreciating the facts of the case. That the judgement laid in Macro Marvel Project Ltd. vs. CST, Chennai, 2008 (12) STR 603 (Tri.-Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Commissioner (Appeals) in an appeal preferred to him; and not against an (interlocutory) order of pre-deposit passed by that authority, in exercise of discretion under the first proviso to Section 35F of the 1944 Act. Since it is the settled legal principle that an appellate remedy is a creature of the statute; and availability of an inherent appellate remedy shall not be assumed; and requires to be legislatively provided, it is legitimate to infer that no appellate recourse to this Tribunal is open to an assessee against an (interlocutory) order of pre-deposit passed by the Commissioner (Appeals), since such an order would not be an order, which by itself disposes of appeal on merits. The appropriate remedy available to an as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing an appeal for failure of pre-deposit; 8. From the above, an appeal against a modification of pre-deposit order would fall under the generality of the appellate jurisdiction and an appeal would lie to the Tribunal. Following the principle laid in M/s.Girnar Transformers Ltd. case, I hold that this appeal filed by Revenue is maintainable. 9. The next issue to be addressed is whether the impugned order is sustainable or not. The strong argument of the Revenue is that there is no error apparent on the face of record in the stay order dated 29.10.2013 and by modifying this order granting full waiver of pre-deposit, the commissioner (Appeals) has reviewed his order, thus acting beyond his authority. Refuting the contentions, it is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses having some common facilities, it would qualify to be called a residential complex and liable to service tax. If the argument of the respondents, that the houses though constructed close to each other are not provided with common facilities, is to be accepted then in my view, there is an error of fact apparent on the face of the stay order dated 29.10.2013. Being a question of fact, I do not wish to speak about it more than what is necessary at this stage as the appeal is pending adjudication before the Commissioner (Appeals). However, it has to be stated that this error pointed out by respondents error is manifest and does not require any long drawn process to show its incorrectness. In such circumstances an application for modificati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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