M/s. Madeena Constructions, Chennai Versus The Commissioner of GST & Central Excise
Central Excise
2018 (12) TMI 1241 – MADRAS HIGH COURT – TMI
MADRAS HIGH COURT – HC
Dated:- 29-11-2018
Civil Miscellaneous Appeal Nos.2734 & 2735 of 2018
Central Excise
Mr.Justice T.S. Sivagnanam And Mr.Justice N. Sathish Kumar
For the Appellant : Mr.K.Jayachandran
For the Respondent : Mr.Syed Noorullah Sheriff, SSC
COMMON JUDGMENT
T.S.SIVAGNANAM, J.
These appeals are filed by the appellant under Section 35G of the Central Excise Act, 1944 as made applicable under Section 83 of the Finance Act, 1994 to set aside final order Nos.40572 and 40573/2018 dated 16.7.2018 passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai.
2. The above appeals are filed raising the following substantial questions of law :
“CMA.No.2734 of 2018 :
i. Whether, in the facts and circumstances of the case, the Tribunal is justified in holding that the application
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ct ?”
3. The challenge is to the order passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter called the Tribunal) dated 16.7.2018 stated to have been made in two miscellaneous applications.
4. The appellant filed an appeal before the Tribunal against the Orderin- Original dated 30.4.2010. By the said order, the Adjudicating Authority demanded service tax from the appellant for the period from 10.9.2004 to 31.3.2008 under the Proviso to Section 73(1) read with Section 73(2) of the Finance Act, 1994; appropriated a sum of Rs. 1 lakh paid by the appellant on 27.8.2008 towards the service tax demanded; demanded interest under Section 75 of the Finance Act, 1994; imposed penalty of Rs. 60 lakhs under Section 78 of the Finance Act, 1994 by further indicating that this penalty would be reduced to 25% of the service tax demanded, if only the service tax and interest determined are paid along with reduced penalty within 30 days from the date of receipt of the order dat
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so filed an application for extension of time, which was considered by the Tribunal and by order dated 03.4.2013, time was extended upto 25.3.2013. Even thereafter, the appellant did not comply with the condition in full and consequently, on 07.6.2013, the appeal stood dismissed for non compliance of the pre-deposit condition.
7. Thereafter, the appellant moved two applications for restoration of the appeal and to modify the order dated 15.1.2013. In the application for modification, the appellant placed reliance on the decision of the Division Bench of the Delhi High Court in the case of Sureshkumar Bansal Vs. Union of India [reported in (2016) 43 STR 3] and the decision of the Division Bench of the High Court of Andhra Pradesh and Telungana in the case of Vijaya Casting Works Vs. Union of India [reported in MANU/ AP/0382/2017]. The said decisions were quoted to support their contention that the pre-deposit relating to appeals filed prior to 06.8.2014 requires only deposit of 7.5% an
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2013 directing predeposit of Rs. 28.90 lakhs and another for restoration of the appeal, the Tribunal, in the impugned order, has not specifically dealt with the prayer made by the appellant for modification in the light of the contentions advanced by the appellant in that application.
12. In our considered view, 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.
13. Accordingly, the civil miscellaneous appeals are allowed and the order passed by the Tribunal dated 16.7.2018 is set aside subject to the condition that the appellant shall deposit a further sum of Rs.7,00,000/- (
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