GIRNAR TRANSFORMERS PVT. LTD. Vs. CCE, KANPUR

JUDGEMENT

(1.) THE assessee company has preferred this appeal. The Deputy Commissioner, Central Excise, Kanpur passed an order dated 28.03.2012 confirming service tax demand of Rs. 10,24,952/ -, interest and penalties, including penalty of an equal amount as the assessed tax, under Section 78 of the Finance Act, 1994 (the Act). Under an agreement with M/s. Dakshinanchal Vidyut Vitran Nigam Limited (DVVNL) the appellant was providing maintenance and repairs of old and damaged transformers. On allegation that during 01.04.2010 to 31.03.2011, the appellant failed to disclose the gross consideration received for having provided the taxable management, maintenance or repair (MMR) service to M/s. DVVNL; had disclosed only labour charges received but not the gross value received, proceedings were initiated by the show cause notice dated 07.10.2011. The proceedings culminated in the adjudication order, dated 28.03.2012.

(2.) AGGRIEVED , the appellant preferred an appeal before the Commissioner, Central Excise & Customs (Appeals), Kanpur, alongwith an application seeking waiver of pre -deposit. By the order dated 29.08.2012, the appellate authority granted waiver of pre -deposit, on condition of deposit of 25% of the duty and penalty confirmed by the adjudicating authority. The pre -deposit was directed to be made by 30.09.2012. The appellant by letter dated 29.08.2012 requested the appellate Commissioner to reconsider the order of pre -deposit, since it was under severe financial distress.

(3.) AT the stage of considering the stay application, on 21.01.2004 we entertained a doubt as to the appropriate disposition warranted by this Tribunal, in the circumstances; whether an appeal against such order of the appellate Commissioner was maintainable; if maintainable whether it is permissible to reconsider the correctness of the appellate Commissioners order dated 29.08.2012 (directing pre -deposit before that authority); and if not whether the impugned order rejecting the appeal for failure of pre -deposit is liable to be interfered with by this Tribunal. Since the above issues have a general application and are recurrent issues before this Tribunal, the stay application along with the substantive appeal were listed for hearing after an invitation to the bar to make submissions on these issues. We have heard the learned Counsel for the appellant Sh. Jitin Singhal, and Sh. Somesh Arora, Sh. G.K. Sarkar and Sh. B.L. Narasimhan, as well.