TMI Blog2014 (12) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... t be said that the appellant has any prima facie case, much less a strong, prima facie, case for waiver so as to dispense with the pre-deposit of the outstanding demand. Once the appellant did not have any prima facie case, there was no reason or occasion for the Tribunal to consider the issue of any hardship to the appellant in making the deposit. - Decided against the assessee. - Central Excise Appeal No. 29 of 2014 - - - Dated:- 10-12-2014 - Hon'ble Krishna Murari And Hon'ble Rakesh Srivastava,JJ. ORDER (Delivered by Hon'ble Krishna Murari, J.) This appeal under Section 35 (G) of the Central Excise Act, 1944 (hereinafter referred to as the Act, 1944) is directed against the order dated 16.09.2014 passed by Customs, Excise and Service Tax Appellate Tribunal, New Delhi rejecting the appellant's application filed in the Appeal No. ST/55763 of 2013 for stay/waiver of pre-deposit of outstanding demand of tax, penalty and interest and to deposit the amount within a period of four weeks from the date of the order and report compliance thereafter, the appeal was to be taken up for final disposal. Facts giving rise to the dispute are as under. Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t but due to lack of knowledge we have not charged the Service tax against the work done during the year 2004-05, 2005-06 and 2006-07. When you have issued us show cause notice then we have given a application to Bharat Petroleum Corporation Ltd. to collect the Service Tax for the above mentioned period and they assure to give us. (copy of the letter is enclosed herewith for your kind perusal.) That our firm is registered under the Service Tax Act and we have deposited the tax accordingly for last 2 years, but as our senior accountant who has the record regarding the service tax quit the job and not handed over the record to us so we were unable to produce the fact and records before yourgoodself at the time of hearing fixed earlier. Therefore it is requested as the mistake appears is just due to lack of knowledge it was not intentional one so please no demand, late fee and penalty impose on the applicant and grant us another chance to produce our facts before yourgoodself in the interest of justice and oblige. Thanking you. For Ghambhir Construction Co. Proprietor With regards Thus, the reply submitted by the appellant goes to show that liability of payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 30.11.2010. The adjudicating authority finding that there was no mistake apparent from the record, rejected the rectification application vide order dated 15.02.2012. Aggrieved, with the order dated 15.02.2012 as well as the order in original dated 30.11.2010 of the adjudicating authority, the appellant preferred a time barred appeal before the Commissioner (Appeals), Customs Central Excise and Service Tax, Lucknow. The appeal was accompanied by an application seeking condonation of delay in filing the appeal. The Commissioner, Central Excise and Service Tax, Lucknow finding that the appellate order in original was received by the appellant on 01.12.2010 and the appeal filed is beyond the stipulated period of three months and also beyond the condonable time limit by the Commissioner (Appeals), which is also of three months, rejected the appeal being time barred vide order dated 30.07.2012. The appellant thereafter approached this Court by filing Writ Petition (M/B) No. 322 of 2013. Vide order dated 15.01.2013, a Division Bench of this Court finding that the appellant has a remedy of filing a second appeal under Section 86 of the Act, 1994, refused to interfere in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f revenue: Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing. It has been urged by the learned counsel for the appellant that, in case, it is established before the Tribunal that if an appellant has a strong case on merits, the appellate authority is bound to examine the issue and if, prima facie, a strong case on merit is established, the condition of pre-deposit ought to be waived. It is well settled that right of appeal is a creature of Statute and if the legislation in its wisdom has imposed certain condition such as pre-deposit for the purpose of maintaining the appeal, normally the Court cannot interfere unless the condition imposed for the exercise of such right are so onerous so as to amount to unreasonable restrictions rendering the said right almost illusory as observed by the Hon'ble Supreme Court in the case of Nand Lal Anr. Vs. State of Haryana Ors., AIR 1980 SC 2097. However, in cases where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the considerations for deciding the application. The order of the Appellate Authority itself must show that it had applied its mind to the issue raised by the appellant and it has been considered in accordance with the law. The expression undue hardship has a wider connotation as it takes within its ambit the case where the assessee is asked to deposit the amount even if he is likely to exonerate from the total liability on disposal of his appeal. Dispensation of deposit should also be allowed where two views are possible. ------------- Undoubtedly, the interest of the Revenue cannot be jeopardized but that does not mean that in order to protect the interest of the Revenue, the Court or authority should not exercise its duty under the law to take into consideration the rights and interest of an individual. ----------- Uniform view of the various High Courts of the country on the question has been that while considering provisions of pre-deposit of duty and penalty, the authority concerned has to examine the question whether the appellant has a good prima facie case so as to justify the dispensation of requirement of pre-deposit of the disputed amount of duty and penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Act which are pari materia with Section 85 of Finance Act, 1994, has held in paragraph 8 of the reports as under. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the Limitation Act) can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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