2018 (12) TMI 1241 – MADRAS HIGH COURT – TMI – Restoration of appeal – praying for restoration of appeal was made with a delay of about 5 years – non compliance with the condition of pre-deposit – Held that:- If the legal position wipes out substantial liability or entire liability, as, according to the appellant, construction of residential complex by a builder was subjected to service tax only from 01.7.2010, this vital point has to be considered by the Tribunal and if this plea is acceptable, it goes without saying that the appellant made out a strong prima facie case. Hence, we are constrained to interfere with the impugned order, however, subject to a condition.
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The appellant had already pre-deposited ₹ 7 lakhs. If the appellant complies with this condition within the time stipulated by us in this judgment, then the two miscellaneous applications shall stand automatically restored to the file of the Tribunal and the Tribunal shall take a fresh decision in both the app
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that the original order of the Tribunal was not served on the appellant, but served on 22.3.2018 when requested by the appellant through RTI application ? and ii. Whether the Tribunal is justified in rejecting the restoration application filed by the appellant on mere assumption without going into the merits of the claim that the demand is contrary to the instructions of the Board dated 17.9.2004? CMA.No.2735 of 2018 : i. Whether the Tribunal is justified in dismissing the appeal for non compliance of stay order without going into the merits of the case, which, according to the appellant, is covered by decision of the Delhi High Court reported in (2016) 43 STR 3 and the instructions of the Board's Circular No.108/02/2009-ST dated 29.1.2009 ? and ii. Whether dismissal of appeal for non compliance of stay order takes away the statutory right of appeal provided under the Act ? 3. The challenge is to the order passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafte
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nal dated 30.4.2010, the appellant preferred an appeal before the Tribunal. Along with the appeal, the appellant filed a miscellaneous application for stay. The Tribunal, by order dated 15.1.2013, found that the appellant made out a prima facie case, as they placed reliance on the decision of the Tribunal in the case of LCS City Makers Private Limited Vs. CCE [reported in (2012-TIOL-618- CESTAT-Mad.] and directed the appellant to make a pre-deposit of 50% of the service tax demanded within a period of six weeks from the date of receipt of a copy of the said order dated 15.1.2013. The matter was directed to be listed on 04.3.2013 for reporting compliance. 6. Admittedly, the appellant did not comply with the condition within the time stipulated, but deposited only a sum of ₹ 7 lakhs in bits and pieces as against the condition of pre-deposit of ₹ 28.90 lakhs. The appellant also filed an application for extension of time, which was considered by the Tribunal and by order dated
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esidential complex by a builder was subjected to service tax only from 01.7.2010 by way of the Explanation brought into Section 65(105)(zzzh) of the Finance Act and if this provision is applied, 90% of the demand made in the Order-in-Original dated 30.4.2010 would not survive. 9. The Tribunal heard both the miscellaneous applications and dismissed the application for restoration by order dated 16.7.2018, which is impugned before us in one of the appeals without rendering any finding in the modification application. 10. We have heard Mr.K.Jayachandran, learned counsel for the appellant and Mr.Syed Noorullah Sheriff, learned Senior Standing Counsel accepting notice for the Revenue. 11. Considering the fact that though the Tribunal noticed that the appellant filed two miscellaneous applications, one of them is with a prayer to modify the stay order passed by the Tribunal dated 15.1.2013 directing predeposit of ₹ 28.90 lakhs and another for restoration of the appeal, the Tribunal, in
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