TMI Blog2018 (12) TMI 1241X X X X Extracts X X X X X X X X Extracts X X X X ..... a condition. The appellant had already pre-deposited ₹ 7 lakhs. If the appellant complies with this condition within the time stipulated by us in this judgment, then the two miscellaneous applications shall stand automatically restored to the file of the Tribunal and the Tribunal shall take a fresh decision in both the applications and more particularly in the application for modification of the stay order - appeal allowed. - Civil Miscellaneous Appeal Nos.2734 & 2735 of 2018 - - - Dated:- 29-11-2018 - Mr.Justice T.S. Sivagnanam And Mr.Justice N. Sathish Kumar For the Appellant : Mr.K.Jayachandran For the Respondent : Mr.Syed Noorullah Sheriff, SSC COMMON JUDGMENT T.S.SIVAGNANAM, J. These appeals are fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of appeal provided under the Act ? 3. The challenge is to the order passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter called the Tribunal) dated 16.7.2018 stated to have been made in two miscellaneous applications. 4. The appellant filed an appeal before the Tribunal against the Orderin- Original dated 30.4.2010. By the said order, the Adjudicating Authority demanded service tax from the appellant for the period from 10.9.2004 to 31.3.2008 under the Proviso to Section 73(1) read with Section 73(2) of the Finance Act, 1994; appropriated a sum of ₹ 1 lakh paid by the appellant on 27.8.2008 towards the service tax demanded; demanded interest under Section 75 of the Finance Act, 1994; imposed pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not comply with the condition in full and consequently, on 07.6.2013, the appeal stood dismissed for non compliance of the pre-deposit condition. 7. Thereafter, the appellant moved two applications for restoration of the appeal and to modify the order dated 15.1.2013. In the application for modification, the appellant placed reliance on the decision of the Division Bench of the Delhi High Court in the case of Sureshkumar Bansal Vs. Union of India [reported in (2016) 43 STR 3] and the decision of the Division Bench of the High Court of Andhra Pradesh and Telungana in the case of Vijaya Casting Works Vs. Union of India [reported in MANU/ AP/0382/2017]. The said decisions were quoted to support their contention that the pre-deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant, construction of residential complex by a builder was subjected to service tax only from 01.7.2010, this vital point has to be considered by the Tribunal and if this plea is acceptable, it goes without saying that the appellant made out a strong prima facie case. Hence, we are constrained to interfere with the impugned order, however, subject to a condition. 13. Accordingly, the civil miscellaneous appeals are allowed and the order passed by the Tribunal dated 16.7.2018 is set aside subject to the condition that the appellant shall deposit a further sum of Rs.7,00,000/- (Rupees seven lakhs only) within a period of three weeks from the date of receipt of a copy of this judgment. To be noted that the appellant had already ..... X X X X Extracts X X X X X X X X Extracts X X X X
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