TMI Blog2018 (4) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... ave instructed that the matter can be remitted back to the Tribunal. Matter is remitted to the Tribunal for consideration on merits. - C.M.A. No.559 of 2018 C.M.P. No.5057 of 2018 - - - Dated:- 5-4-2018 - S. Manikumar And V. Bhavani Subbaroyan, JJ. For Appellant : Ms.D.Naveena For Respondent : Mr.Rajinish Pathiyil JUDGMENT ( Delivered by S. Manikumar, J. ) Instant civil miscellaneous appeal is filed against the Final Order of CESTAT, Chennai dated 09.02.2017 made in Final Order No.40196/2017, on the following substantial questions of law: 1. Whether in the facts and circumstances of the case, an order of the Commissioner (Appeals) dismissing an appeal for non-compliance of pre-deposit order is an appealable order in terms of Section 86 of the Finance Act, 1994? 2. Whether in the facts and circumstances of the case, the Hon'ble CESTAT was justified in dismissing the appeal as not maintainable, without considering the correctness and legality of the order of the Commissioner (Appeals) dismissing the appeal for non-compliance of pre-deposit order? 2. Short facts leading to the appeal are that Teaserve, is the world's first electronic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant filed its reply vide letter dated 16.10.2006, contending inter alia, that the demand was hit by limitation and that the appellant was eligible for exemption under Notification No.13/2003-ST dated 20.06.2003 and Notification No.8/2004-ST dated 09.07.2004. The appellant also submitted that they have paid service tax to the tune of ₹ 2,51,205/- to M/s.CMC Ltd, who provide the set up for the electronic auction and the same is available as Cenvat credit and hence, ought to be deducted from the final demand. Based on the submissions of the appellant, the adjudicating authority passed an order dated 30.11.2007 restricting the demand to ₹ 4,38,391/- and imposed penalties under Sections 76, 77 and 78. 6. Aggrieved by the impugned order of the adjudicating authority, appellant preferred an appeal under Section 85 of the Finance Act, 1994 before the Commissioner (Appeals) along with an application of stay. On 29.07.2008, the Commissioner (Appeals) passed an interim order, directing the appellant to deposit the entire amount of tax and 50% of the penalties imposed within a period of 30 days from the date of receipt of order. Being aggrieved by the impugned order, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... batore reported in 2014 (310) E.L.T. 685 (Mad.), wherein it was categorically held that where the learned Commissioner (Appeals) had dismissed the appeal for failure of pre-deposit, the Tribunal is required to consider the correctness of the order passed by the Appellate Commissioner and remand the matter to the Appellate Commissioner for de novo consideration after passing an appropriate order as to pre-deposit. 11. She further submitted that the Tribunal, ought to have seen that the pre-deposit order 29.07.2018 of the learned Commissioner (Appeals) has been passed without considering the relevant parameters necessary for passing an interim order viz.(a) prima facie case, (b) balance of convenience and (c) irreparable loss. It is her further submission that the learned Commissioner (Appeals) ought to have seen that the appellant is a non-profit institution and hence, it is not in a financial position to pay the pre-deposit. Further, he ought to have seen that, since the appellant is under the administration of the Tamil Nadu Government, no prejudice will be caused to the revenue if pre-deposit is waived. It is further relevant to point out that the Tribunal, while disposing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtent the order has been rightly put to test by the appellant before this Court. Learned Standing Counsel for the Department, when pointed out about the error in the order, also fairly submits that the Tribunal should have considered the issue of pre-deposit on merits instead of confirming the order of the Commissioner (Appeals) as impeccable without setting out how it is above standards. In the light of the discussion as made above, the second substantial question of law is answered in favour of the assessee. 14. On 13.03.2018, we have passed the following order: Instant Civil Miscellaneous Appeal is filed, against the Final Order No.40196 of 2017, dated 9/2/2017, on the file of the CESTAT, Madras, on the following substantial questions of law:- 1. Whether in the facts and circumstances of the case, an order of the Commissioner (Appeals) dismissing an appeal for non-compliance of pre-deposit order is an appealable order in terms of Section 86 of the Finance Act, 1994? 2. Whether in the facts and circumstances of the case, the Hon'ble CESTAT was justified in dismissing the appeal as not maintainable, without considering the correctness and legality of the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajinish Pathil, Senior Central Government Standing Counsel, seeks time to get instructions. 6. Post on 19/3/2018, in the motion list. 15. Added further, on the basis of instructions in C.No.I/10/12/2018-LG dated 27.03.2018, Mr.Rajnish Pathiyil, learned Senior Central Govt. Standing Counsel, submitted that the department have instructed him to state that the matter can be remitted back to the Tribunal. For brevity, instructions dated 27.03.2018 is reproduced hereunder: C.No.I/10/12/2018-LG Dated : 27.03.2018 TOP PRIORITY To Rajnish Pathiyil Senior Central Govt. Standing Counsel Sub: Observation of the Commissioner in case of M/s.Teaserve vs. The Commissioner of Central Excise, Salem - Regarding **** Sir/Madam, Please refer to your letter Ref: No.RP/GST CE/0007/2018/002 dated 20.03.2018 the case CMA No.559 of 2018 M/s.Teaserve vs. The Commissioner of Central Excise, Salem. Observation of the Commissioner is hereby communicated for favour of necessary action while defending the case posted on 28.03.2018. We may suggest that the court may direct the Hon'ble Tribunal to decide on merit instead of sending it back to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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