SWAMSAR INDUSTRIAL SERVICES Vs. CESTAT

JUDGEMENT

(1.) These appeals are preferred under Section 35G of the Central Excise Act, 1944 (for short, 'the Act') aggrieved by the order dated 4-2-2013 passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Bangalore Bench in two appeals being Nos. 25032 and 25031 of 2013. At the outset, it is necessary to mention that Section 35G of the Act has been repealed by the National Tax Tribunal Act, 2005. However, the learned counsel for the appellant submits that in the absence of the requisite notification, the amendment has not been enforced so far. The said fact has not been disputed by Sri V. Gopalakrishna Gokhaley, the learned counsel, appearing for the respondents and therefore, we proceeded on merits.

(2.) The facts in brief are as under:

(3.) By orders dated 5-5-2010 and 6-5-2010, the Commissioner of Customs, Central Excise and Service Tax held that the writ petitioners are liable to pay Service Tax specified therein together with the interest thereon and penalty imposed under Section 77 of the Finance Act, 1994. Aggrieved by the same, the petitioners preferred two appeals before the CESTAT. It is to be noticed that under Section 35F of the Act, the person desirous of appealing against an order of demand of duty is liable to deposit with the adjudicating authority the duty demanded or the penalty levied. However, as per the proviso, the CESTAT is conferred with the power to dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the interest of the revenue. In the present cases, it was pleaded by the appellants that they were unable to deposit the amount as required under Section 35F of the Act and after considering the same, the CESTAT by a common order dated 13-4-2011 directed the petitioners to pre-deposit a sum of Rs. 60,00,000/- within a period of eight (8) weeks and report compliance on 6-6-2011 to the Assistant Registrar. It was also made clear in the said order that subject to such compliance being reported, the applications for waiver of pre-deposit of the amounts involved were allowed and recovery thereof was stayed till the disposal of the appeals. Contending that the condition imposed by the CESTAT was arbitrary, illegal and onerous, the petitioners filed W.P. Nos. 14260 of 2011 and 14329 of 2011.