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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 ..... ed an appeal before the Commissioner (Appeals) alongwith an application for stay. The then Commissioner (Appeals) heard and disposed the application for stay vide stay order dated 29.10.2013 directing the respondents to deposit the entire amount of service tax of Rs. 30,24,642/- as pre-deposit within a period of three weeks. The respondent did not comply with the order. They filed an application dated 13.11.2013 seeking modification of stay order. This application was heard and disposed vide impugned order dated 18.2.2015 by which the Commissioner (Appeals) modified the earlier stay order and granted full waiver of pre-deposit. 3. In this appeal, the Revenue challenges this modification of stay order on the ground that (1) there is no prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has power to rectify mistake in regard to pre-deposit order. 5. I have heard the rival submissions and perused the records carefully. 6. As the relevant provisions of law do not provide for an appeal against an interim order passed by the Commissioner (Appeals) this Bench entertained a doubt whether this appeal filed by the Revenue against the interim order/stay order passed by Commissioner (Appeals) is maintainable or not. As stated, the relevant provisions of law do not provide that an appeal would lie before the Tribunal against an interim order of pre-deposit passed by the Commissioner (Appeals). The observation of CESTAT in the case of M/s.Girnar Transformer Ltd. (supra) would give a clear picture on this issue. In para 10 of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of pre-deposit/stay passed by that authority. While no power is specifically conferred on the Commissioner (Appeals) either under sections 35 or 35A of the 1944 Act, to review his own decision; and though the provisions of section 35C (2) of this Act confer the power (to rectify any mistake apparent on the record) only on this Tribunal, the Commissioner (Appeals) may entertain, an application for rectification/modification of a pre-deposit order, but only for rectification of an error on the face of the record; (c) In view of the decision of the Punjab and Haryana High Court in Surya Pharmaceutical Ltd. (supra), since an order of pre-deposit passed by the appellate Commissioner, in exercise of discretion under section 35F of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to their case. It is also pointed out that the said judgements have been wrongly distinguished by the Commissioner (Appeals). It is seen from the application that the basic contention of the respondents is that they are engaged in construction of independent residential buildings, which were not connected in plinth, had separate boundary wall, entrance and separate electricity and water connection and thus will not fall into the category of construction of residential complex coming under section 65 (30a) read with section 65 (91a) an section 65 (105) (zzzh) of the Finance Act, 1994. In the stay order dated 29.10.2013, the Commissioner (Appeals) noted that these premises have common facilities/services like common water supply, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 10. It is made clear that the observations made herein regarding the contentions raised by the respondents are confined to this order. It is open for the Commissioner (Appeals) to decide the appeal on its own merits. In view, thereof, considering the facts and circumstances presented, the Commissioner (Appeals) is directed to decide the appeal as expeditiously as possible, preferably within a period of six months from the date of order. The waiver of pre-deposit to the extent directed in stay- modification order dated 18.2.2015 will be valid until the final disposal of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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