Home Case Index All Cases Service Tax Service Tax + HC Service Tax - 2019 (5) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (5) TMI 241 - HC - Service TaxTime limit for filing of Stay application before Commissioner (Appeals) - Whether the Central Excise Act, 1944 or the Finance Act, 1994 prescribes any time limit for filing the Stay application before Commissioner (Appeals)? Whether the Tribunal was justified in dismissing the appeal solely on the ground that there was a delay in filing the stay application before Commissioner (Appeals) even when admittedly the stay application had been filed six months before the date of hearing, and waiver of pre-deposit was specifically pleaded at the time of hearing before Commissioner (Appeals)? HELD THAT:- Whenever the Parliament desired to make a precondition that the amount of duty and/or penalty should be deposited before the Appeal is filed, it is so provided in the legislation. Thus, in terms of Section 35F of the Act, so long as the appeal is not disposed of/ dismissed by the Appellate Authority, it is open to the party to file an application for dispensing with pre-deposit of duty and penalty pending the disposal of the appeal. Once such an application is filed pending the appeal then in terms of the second proviso to Section 35F of the Act, it has to be disposed of by the Appellate Authority whenever possible within 30 days of filing of such an application - There is no period of limitation provided in Section 35F of the Act to file an application for dispensing with pre-deposit of duty and penalty. Therefore, it is not open to read a provision of limitation where it is not found in the section. Undoubtedly, the right of an appeal can be conditional. However, the conditions for the appeal being entertained are to be imposed by legislation and not by executive fiat / action. The order of the Commissioner (Appeals) dated 10th December, 2015 and the impugned order of the Tribunal dismissing the appeal itself on the ground that the stay application has been filed belatedly in a pending appeal, is not sustainable. In the present facts, the application for dispensing with the requirement of pre-deposit under Section 35F of the Act was on record before Commissioner of Central Excise (Appeals) when he passed an order, dismissing the appeal. The issues decided in favour of the Appellant-Assessee and against the Respondent Revenue - matter is remanded to the Commissioner (Appeals) for fresh consideration.
|