9911796707
TMI Blog2016 (4) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Observing that, there is no provision for allowing to pay the balance in installments, the Tribunal dismissed the petition by passing the Miscellaneous Order No.41071/2014 dated 24.06.2014. This order is under challenge in C.M.A.No.159 of 2016. 1.2. Subsequently, the Appellant paid an amount of Rs. 37,00,000/- on various dates and thereafter, filed an application for restoration of appeal, which was dismissed vide Miscellaneous Order No.41282/2015, dated 14.10.2015, observing that the Tribunal had become functus officio after passing the order. Challenging the same, C.M.A.No.97 of 2016 has been filed. 2. As the common question of law is involved in all the three cases, common judgment is pronounced. 3. The following is the substantial question of law raised in the respective cases: C.M.A.No.158 of 2016 Whether, in the facts and circumstances of the present case, the Tribunal is correct in dismissing the appeal, vide Final Order No.40471/2013 dated 22.10.2013? C.M.A.No.159 of 2016 Whether, in the facts and circumstances of the present case, the Tribunal is correct in dismissing the petition (permission to deposit the balance amount of Rs. 37,00,000/- in installments) by Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was to be taken by the Commissioner (Appeals) and CESTAT, on the merits of the case. The Appellate Authority was competent to decide the amount of predeposit required to be made by the Appellant, after taking into consideration the merits of the case and / or considering the financial hardship to the assesse as well as to safeguard the interest of the Revenue. This decision was taken by the Commissioner (Appeals) or Tribunal, while considering the application of the Appellant for stay of the order against which he has preferred appeal. The appellate authorities were even competent to order a small amount of predeposit or to waive the predeposit altogether. 5.5. However w.e.f. 06.08.2014, no such discretion is now available with the Commissioner (Appeals) or CESTAT. If the prescribed pre-deposit is not made at the time of filing the appeal, the appeal is liable for rejection. 6. Whether the Tribunal will become functus officio, once the Tribunal passes an order, dismissing the appeal for non-compliance of the condition imposed, is the issue to be considered? 6.1. The meaning of Latin Maxim 'Functus Officio' has been explained with example in P.Ramanatha Aiyar's Law L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t even pay any direct taxes because indirect taxation affects the life of everyone. 7.2. The needs of governance in a police State are limited but those in a welfare State are far more and which is understandable. 7.3. That is an area which requires serious reflection by everyone concerned with the framing of the tax laws and their implementation. It has been said, even in the ancient texts while describing the taxing power of the king, the political sovereign, that a good king is he who draws in the form of taxes from the subjects only as much as a bee draws honey from a flower so that the sustenance of the flower is not endangered. 8. It is appropriate to quote Arthashastra. "Taxation should not be a painful process for the people. There should be leniency and caution while deciding the tax structure. Ideally, Governments should collect taxes like a honeybee, which sucks just the right amount of honey from the flower so that both can survive. Taxes should be collected in small and not in large proportions." 8.1. Honourable Justice J.S.Verma, while delivering the lecture on Constitutional obligation of the Judiciary, said that the tax policy and imposition of tax should be li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned counsel for the assessee that the demand for service tax confirmed against the Assessee in respect of construction of residential complex is not sustainable for the period upto 01.07.2010, in view of the decision reported in 2014-TIOL-1491-HC-MAD-ST - Jain Housing vs. CST, Chennai, where-under, this Court held that when the individual buyer is buying the flat only for his personal use, the same is not liable for service tax; similar view has been taken in the case of Josh P.John and others vs. CST - 2014- TIOL-1753-Tri-Bang. The grounds taken on merits and the supporting decisions relied upon give an indication that the Assessee has an arguable case on merits. This is one of the main factors to be considered, while considering an application for restoration. 9.3. It is pointed out by the learned counsel for the appellant / assessee that the decision relied upon, i.e. 2013 297 ELT A15 (SC) (Lindit Exports vs. Commissioner), by the CESTAT, is not applicable to the facts of this case. In the said case, the direction to pre-deposit of Rs. 2.5 crore was taken in appeal; appeal was dismissed for non-compliance of the conditional order of stay; four years after the dismissal or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se for his non-appearance when the appeal was called on for hearing, the Tribunal shall make an order setting aside the dismissal and restore the appeal. (ii) Rule 41 - Orders and directions in certain cases: The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice. 9.5. Contending that the Tribunal has jurisdiction to recall its own order, to meet the ends of justice, the following decisions are relied upon by the learned counsel for the appellant : (i) Hussein Haji Harun vs. Union of India (1995 (77) ELT 803 (Guj)). "It cannot be gainsaid that when the Act or the Rules in question do not specifically prohibit restoration of an appeal dismissed on the ground of non-deposit of the amount, the Tribunal certainly has the power and jurisdiction to recall its earlier order, if the ends of justice require such a course of action. It is more so because while dismissing the appeal on the ground of non-deposit of the amount, the Tribunal did not determine any issue or dispute and so there was no question of reviewing the earlier decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 129E are only in nature of procedural requirements therefore for delay in meeting the pre-deposit requirement, the primary right of appeal cannot be extinguished. 10. From the decisions relied upon by the learned counsel for the Assessee, it is clear that it is not for the Tribunal to state that the Tribunal has no jurisdiction to hear it, but it has no jurisdiction to refuse to hear it, once the procedural requirement of pre-deposit is complied with. The legal reasoning, in support of that, runs as follows: (a) When the Act or the Rules in question do not specifically prohibit restoration of an appeal, dismissed on the ground of non-deposit of the amount, the Tribunal certainly has the power and jurisdiction to recall its earlier order, if the ends of justice require such a course of action. (b) When Rule 20 provides for restoration of appeal in case when the appeal is dismissed for default, there is no reason as to why the power of restoration should not be exercised in case of non-compliance with the provision for pre-deposit. (c) even if no pre-deposit is made, the appeal may not be heard, but the dismissal of the appeal for non-compliance of pre-deposit does not p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
