AAKASH CABLE TV NETWORK Vs. C.C.E.

JUDGEMENT

(1.) HEARD Shri O.P. Agarwal, ld. Consultant for the appellant and Shri Sanjay Jain, ld. Authorised Representative for the respondent -Revenue. At the stage of considering the stay application, we consider it appropriate to dispose of the substantive appeal itself, since the appeal is misconceived. The Additional Commissioner, Central Excise, Jodhpur by the adjudication order dated 10.12.2011 confirmed service tax demand of Rs. 2,06,270/ -, besides ordering recovery of interest under Section 75, and the penalties imposed under Sections 76 & 78 of the Finance Act, 1994. Aggrieved thereby, the appellant/assessee preferred an appeal. The Commissioner (Appeals -II), Jaipur disposed of the stay application filed along with the appeal, by Stay Order No. 30 CB/ST/JPR -II/2011, dated 20.6.2011 directing pre -deposit of the entire service tax liability within three weeks from the date of receipt of the order and furnish proof of deposit to the concerned Range Superintendent under intimation to the appellate authority. This order also stipulated that on non -compliance of the provisions of Section 35F of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 the appeal will liable to be rejected and further directed that on deposit of the service tax component as directed, recovery of interest and penalties shall remain stayed, during pendency of the appeal.

(2.) THE admitted factual position is that the appellant did not comply with above stay order. Consequently by the impugned order dated 5/12.12.2012, the appellate authority dismissed the appeal for non -compliance with the pre -deposit requirement specified in the order dated 20.6.2011.

(3.) LD . Consultant for the appellant states that in similar circumstances, this Tribunal had granted relief. He has referred to certain decision which support his contention. In Sharda Synthetics Pvt. Ltd. vs. C.C.E., Mumbai -, 2011 (274) ELT 584 (Tri -Mumbai), a ld. Division Bench had an occasion to consider rejection of an appeal by the lower appellate authority on the ground that an order of pre -deposit was not complied with. This Tribunal disposed of the appeal with the observation that the impugned order (of the lower appellate authority) was not on merits and the stay application was dealt with without recording any finding on the submission by the appellant in their stay application; that the appellant has a strong prima facie case on limitation and the balance of convenience is also in favour of the appellant. The Tribunal also observed that if the appellants were directed to make any pre -deposit, the appellant would suffer irreparable loss and that the disposal of the stay application by the lower appellate authority was not in conformity with principle enunciated in the judgement of the Andhra Pradesh High Court in C.C.E., Guntur vs. Sri Chaitanya Educational Committee reported in : 2011 (22) STR 135 (A.P.) and therefore the order of the lower appellate authority which was passed on merits must suffer invalidation.