TMI Blog2010 (10) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... of Appeal No. ST/444/2007 dismissed vide our Final Order No. 1412/2009 dated 20-11-2009. The facts of the case are that the appellants are engaged in providing photographic services. Adjudging a show-cause notice issued to the appellant, the Joint Commissioner, Customs Central Excise, Tirupathi Commissionerate confirmed demand of Service Tax of Rs. 4,66,189/- along with applicable interest. He appropriated an amount of Rs. 90,000/- paid by the appellant before adjudication. The amount confirmed was differential Service Tax found due from the appellant towards photographic services rendered by it during the period 16-7-2001 to 31-8-2004. The Joint Commissioner imposed a penalty of Rs. 4,66,189/- on CCL under Section 78 of the Finance Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed appeal along with stay application before the Tribunal. The stay application stood posted for hearing on several days when the appellant was not represented. Vide Stay Order No. 56/2009 dated 21-1-2009, this Tribunal dismissed the stay application for non-prosecution. It was ordered that the appellants should report compliance with the provisions of Section 35F of the Central Excise Act by 22nd May, 2009. 2.1 Vide Misc. Order No. 503/2009, dated 11-9-2009, the Tribunal dismissed the application filed by CCL for restoration of the stay application. At the time of hearing of the misc. application on 26-8-2009, the Counsel for the appellants had sought time for complying with the condition of pre-deposit of the dues adjudged vide the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t ten days. On 14-12-2009, they had received a certified copy of the Final Order No. 1412/2009 dated 23-11-2009 vide which their appeal was dismissed for default and for failure to comply with Section 35F of the Central Excise Act. It is submitted that they were not represented on earlier occasions not on account of their negligence but due to their bona fide belief that they would be represented by their counsel. They were not informed of the requirement to make pre-deposit by a certain date by the counsel as ordered vide Stay Order No. 56/2009. 3.1 They cited judgments of the Apex Court in ACC Limited v. CC reported in 124 STC 59 (pages 74 75) and (2008) 10 APVR 233 and of the Tribunal in Shilpa Colour Lab v. CCE [2006 (4) S.T.R. 565) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Service Tax and penalty confirmed against them for its appeal to be entertained. The pertinent portion of Section 35F reads as follows :- SECTION 35F : Deposit, pending appeal, of duty demanded or penalty levied. Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plies equally to the Tribunal s powers under Section 86 of the Finance Act, 1994. We also note that the Tribunal becomes functus officio after it pronounces and delivers a Final Order in an appeal. We are fortified in our finding by the following observations of the Hon ble High Court of Gauhati in the case of Dharampal Satyapal Ltd. v. UOI [2010 (257) E.L.T. 194 (Gau.)] :- It is well settled that a Court or Tribunal or adjudicating authority becomes functus officio (ceases to have control over the matter) once a judgment is pronounced or the order is made. Such judgment and order, when becomes final, cannot be altered, changed, varied or modified unless the statute, whereunder the Court, Tribunal or the adjudicating authority functions, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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