M/S. Stewarts and Lloyds of India Limited Vs. Commissioner of Service Tax, Kolkata - Court Judgment

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CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Kolkata
Decided OnMar-03-2014
Case NumberStay Petition No.ST/S/554 of 2012 & Service Tax Appeal No.ST/A/256 of 2012 (Arising Out Of Order-In-Appeal No.91/St/Kol of 2012 Dated 01.03.2012 Passed By Commissioner of Central Excise (Appeals),Appeal-I, Kolkata)
JudgeTHE HONOURABLE DR. D.M. MISRA, HONOURABLE JUDICIAL MEMBER & DR. I.P.LAL, HONOURABLE TECHNICAL MEMBER
AppellantM/S. Stewarts and Lloyds of India Limited
RespondentCommissioner of Service Tax, Kolkata
Excerpt:
finance act, 1994 - section 78 -d.m. misra, j. 1. this is an application seeking waiver of predeposit of service tax of rs.25.88 lakh and penalty of equal amount imposed under section 78 of the finance act, 1994. 2. at the outset, ld. ca for the applicant submits that the ld. commissioner (appeals) had not decided the issue on merit, but dismissed their appeal on the ground of failure to deposit rs.25.00 lakh, as directed by him under section 35f of the central excise act, 1994, as applicable to the service tax matters. the ld. ca also submits the applicant company has been incurring heavy losses, and as on 31.03.2013, they had incurred a loss of around rs.3.47 crore, and as on date, the loss is around rs.9.00 crore. he submits that the issue is debatable and rests on appreciation of facts. however, he makes a fair.....
Judgment:

D.M. Misra, J.

1. This is an Application seeking waiver of predeposit of Service Tax of Rs.25.88 lakh and penalty of equal amount imposed under Section 78 of the Finance Act, 1994.

2. At the outset, ld. CA for the Applicant submits that the ld. Commissioner (Appeals) had not decided the issue on merit, but dismissed their appeal on the ground of failure to deposit Rs.25.00 lakh, as directed by him under Section 35F of the Central Excise Act, 1994, as applicable to the Service Tax matters. The ld. CA also submits the Applicant Company has been incurring heavy losses, and as on 31.03.2013, they had incurred a loss of around Rs.3.47 crore, and as on date, the loss is around Rs.9.00 crore. He submits that the issue is debatable and rests on appreciation of facts. However, he makes a fair offer to deposit Rs.5.00 lakh.

3. Ld. AR for the Revenue fairly concedes that the issue has not been decided on merit. Therefore, he has no objection in remanding the matter.

4. After hearing both sides for some time, we find that the Appeal itself could be disposed of, at this stage. Accordingly, with the consent of both sides, the Appeal is taken up for disposal.

4.1. We find that the ld. Commissioner (Appeals) had not decided the issue on merit, but dismissed the appeal on the ground of failure to deposit the directed amount.

4.2.After hearing the ld. CA for the Appellant, we find that the issue rests on appreciation of evidences and is debatable one. Considering the financial condition of the Appellant Company, we direct the Appellant to make a pre-deposit Rs.5.00 lakh (Rupees five lakh) within a period of eight weeks from today, and report compliance directly to the ld. Commissioner (Appeals). The ld. Commissioner (Appeals), after recording the compliance, would decide the issue on merit afresh, without insisting any further deposit. Needless to mention that a reasonable opportunity of hearing be granted to the Appellant. All issues are kept open. Appeal allowed by way of remand. Stay Petition disposed of.