FOCUSED CORPORATE SERVICES (I) Vs. CCE

JUDGEMENT

(1.) THIS application filed by the appellants is for restoration of their appeal which was allowed by way of remand vide Final Order No. 177/2007 dated 28.2.2007, which was passed ex parte. That final order directed the appellants to predeposit Rs. 10.00 lakhs with the lower appellate authority and directed the appellate authority to deal with their appeal on merits, subject to such deposit. In the present application, it is submitted, it was without considering many of their submissions that learned Commissioner (Appeals) directed them to predeposit Rs. 10.00 lakhs in the earlier round of litigation. It is submitted that nearly Rs. 10.00 lakhs had already been deposited by them and that this fact was borne on record before the lower appellate authority Learned Counsel refers to the memo of appeal and submits that an amount of Rs. 2,13,137/ - had been paid as service tax for the period from July 2003 to July 2004 and further that an amount of Rs. 7,88,245/ - was also paid as service tax for the period from September 2004 to September 2005. These payments were not taken into account by learned Commissioner (Appeals). Learned Counsel has also adverted to the merits of the case and has claimed that the appellants had a good case before the lower appellate authority, which was not properly appreciated. We have heard learned SDR also.

(2.) AFTER considering the submissions of learned Counsel, which are supported by documents filed today, we are of the view that the above payments should be treated as a predeposit for the purpose of the appeal before the lower appellate authority. Accordingly, after recalling Final Order No. 177/2007 dated 28.2.2007, we pass the following FINAL ORDER: 1. This application is for waiver of predeposit and stay of recovery in respect of an amount of service tax of Rs. 33,56,289/ - demanded from the appellants as also in respect of a penalty of Rs. 60 lakhs imposed on them. Against the decision of the original authority confirming the above demand of tax and imposing the above penalty, the appellants preferred appeal to the Commissioner (Appeals) and also filed therein an application for waiver of predeposit and stay of recovery. By order dated 4.7.2006, the appellate authority directed the appellants to predeposit an amount of Rs. 10 lakhs under Section 35F of the Central Excise Act on or before 25.7.2006. The party thereupon filed an application for reconsideration of the said order, which was not considered by the appellate authority in the absence of any provision of law enabling it to consider such an application. Eventually, in the absence of evidence of predeposit, learned Commissioner (Appeals) dismissed the assessee's appeal for non -compliance with Section 35F of the Act. Hence the present appeal and application before us. 2. Learned Counsel prays for fresh remand of the case to the Commissioner (Appeals). We have heard learned SDR also.

(3.) AFTER considering the submissions, we are of the view that the appeal itself can be finally disposed of at this stage. Accordingly, after dispensing with predeposit, we proceed to deal with the appeal.