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2015 (11) TMI 1188 - CESTAT NEW DELHI

2015 (11) TMI 1188 - CESTAT NEW DELHI - 2016 (42) S.T.R. 325 (Tri. - Del.) - Challenge to stay modification order - construction services - Power of Commissioner (Appeals) to review his own order - Maintainability of appeal - Held that:- an appeal against a modification of pre-deposit order would fall under the generality of the appellate jurisdiction and an appeal would lie to the Tribunal. Following the principle laid in M/s.Girnar Transformers Ltd. case [2014 (2) TMI 1132 - CESTAT NEW DELHI], .....

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yet another judgement rendered in the case of Inderjeet Singh Jadon in [2015 (11) TMI 1143 - CESTAT NEW DELHI]. Therefore, by the impugned order, in my opinion, the Commissioner (Appeals) has not exercised power of review, but has merely rectified a mistake apparent from the record, which was within his power as laid in the case of M/s.Girnar Transformers Ltd. - Decided against Revenue. - Appeal No. ST/51955/2015-ST-SM With ST/CO/52015/2015 - Final Order No.53259/2015 - Dated:- 28-10-2015 - Smt. .....

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an application for stay. The then Commissioner (Appeals) heard and disposed the application for stay vide stay order dated 29.10.2013 directing the respondents to deposit the entire amount of service tax of ₹ 30,24,642/- as pre-deposit within a period of three weeks. The respondent did not comply with the order. They filed an application dated 13.11.2013 seeking modification of stay order. This application was heard and disposed vide impugned order dated 18.2.2015 by which the Commissione .....

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ication for rectification/modification of a pre-deposit order, in case of an error apparent on the face of record. That the impugned order is not passed in the nature of rectification of mistake but is in the nature of review of his own decision. That there is no mistake apparent in the stay order dated 29.10.2013. 4. Per contra, the learned counsel appearing for the respondent reiterated the contentions raised in the cross objections filed. He submitted that in the earlier stay order the Commis .....

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e was allowed after taking into consideration of the entirety of facts and judicial dispositions. That in M/s.Girnar Transformers case, it has been held by the Tribunal that Commissioner (Appeals) has power to rectify mistake in regard to pre-deposit order. 5. I have heard the rival submissions and perused the records carefully. 6. As the relevant provisions of law do not provide for an appeal against an interim order passed by the Commissioner (Appeals) this Bench entertained a doubt whether th .....

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n a primary analysis of the provisions of Sections 85 and 86 of the Act it appears that an appeal to this Tribunal lies only against a final order passed by the Commissioner (Appeals) in an appeal preferred to him; and not against an (interlocutory) order of pre-deposit passed by that authority, in exercise of discretion under the first proviso to Section 35F of the 1944 Act. Since it is the settled legal principle that an appellate remedy is a creature of the statute; and availability of an inh .....

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icial review under Article 226 or a supervisory curative recourse under Article 227, of the Constitution. Precedents however appear to belie this empirical assumption. 7. The Tribunal analyzed in depth, various judgements and laid, interalia, the following principles:- (a) (b) The Commissioner (Appeals) has the power, authority an jurisdiction to entertain an application for rectification or modification of an order of pre-deposit/stay passed by that authority. While no power is specifically con .....

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t in Surya Pharmaceutical Ltd. (supra), since an order of pre-deposit passed by the appellate Commissioner, in exercise of discretion under section 35F of the 1994 Act amounts to an order passed under the generality of the appellate jurisdiction under section 35, an appeal lies to this Tribunal against such order as well, apart from an appeal against the final order dismissing an appeal for failure of pre-deposit; 8. From the above, an appeal against a modification of pre-deposit order would fal .....

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e commissioner (Appeals) has reviewed his order, thus acting beyond his authority. Refuting the contentions, it is the case of the respondent that the facts stated in the stay order dated 29.10.2013 was not at all correct and therefore they filed application for rectification/modification. The copy of the application for modification of stay order filed by the respondent before the Commissioner (Appeals) is furnished along with the cross objections. On perusal of this application, it is seen tha .....

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ndary wall, entrance and separate electricity and water connection and thus will not fall into the category of construction of residential complex coming under section 65 (30a) read with section 65 (91a) an section 65 (105) (zzzh) of the Finance Act, 1994. In the stay order dated 29.10.2013, the Commissioner (Appeals) noted that these premises have common facilities/services like common water supply, park, parking space, community hall, etc. and are situated in close proximity in a common area .....

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