R.M. Borde, J.@mdashHeard. Admit. With the consent of the parties, appeal is taken up for final disposal at admission stage.
2. Show cause notice-cum-demand was issued to appellant on 4-5-2009 in respect of recovery of Service Tax to the tune of Rs. 2,53,386/-. Appellant answered the show cause notice and thereupon the matter was adjudicated by the Assistant Commissioner, Central Excise and Customs, Aurangabad on 11-12-2009. The Assistant Commissioner confirmed the demand of Rs. 2,53,386/- and further directed imposition of penalty and interest in accordance with provisions of law. Appellant preferred appeal to the Commissioner (Appeal) which was also turned down. Second appeal was preferred by the appellant to the Customs, Excise and Service Fax Appellate Tribunal. During pendency of appeal, appellant tendered application seeking stay of impugned order which was granted by the Tribunal subject to deposit of Service Tax amount. Appellant had already deposited sum of Rs. 43,260/- and further sum of Rs. 50,000/- came to be deposited after passing of the order by Tribunal. Appellant was thus liable to pay balance amount however, appellant failed to deposit the amount as directed by the Tribunal and as such, appeal preferred by appellant came to be dismissed by the Tribunal by order dated 17-7-2012. Appellant is challenging order of dismissal of appeal passed by the Central Excise and Service Tax Appellate Tribunal so also order passed by the Tribunal on 14-5-2012.
3. Substantial question of law that arises for consideration in the matter is:
Whether the Appellate Tribunal was justified in directing the appellant to make pre-deposit of Service Tax amount without considering decision of the Division Bench in the matter of M/s. SRJ Peety Steels Pvt. Ltd. v. Union of India (First Appeal No. 706/2011 with C.A. No. 5013 of 2011) delivered on 20th July, 2011, remanding the proceeding back to the Tribunal for consideration as to whether the Tribunal needs to apply uniform criteria while issuing direction for making pre-deposit of amount during pendency of appeal?
4. Learned counsel for appellant has vehemently contended that in identical circumstances appellate authority had granted interim stay on condition of deposit of Rs. 1,00,000/- however, the Tribunal has applied different parameters in case of appellant and directed to deposit whole of the Service Tax amount demanded by the Assessing Officer. Reliance is placed on a judgment delivered by this Court in First Appeal No. 706/2011 in the matter of M/s. SRJ Peety Steels Pvt. Ltd. v. Union of India and Another decided on 20-7-2011 wherein this Court accepted contentions of appellant who was similarly placed and directed remittance of matter back to the Tribunal for consideration. The Division Bench has observed in the judgment that Tribunal is expected to take consistent view regarding pre-deposit when facts and circumstances are similar. Reliance is also placed on a judgment in the matter of
5. Learned counsel for respondent has contended that the appellant need not object to earlier order passed by the Tribunal on 14-5-2012 directing the appellant to deposit Service Tax amount. Appellant waited until dismissal of appeal and now he is agitating the order of dismissal which is consequence of failure of appellant to deposit the amount. In fact, appellant accepted the order passed by the Tribunal on 14-5-2012 and deposited sum of Rs. 50,000/- after passing of stay order. It is contended that it is not open for the appellant to raise challenge to conditional stay order on any ground. Apart from this, it is contended that the view taken by this Court in the matter of M/s. SRJ Peety Steels Pvt. Ltd. has not been approved by two Division Benches of this Court. Reliance is placed on a judgment in the matter of Orange City Alloys Private Limited and Others v. Commissioner of Central Excise, Nagpur, decided on 10-12-2011 wherein referring to the aforesaid judgment the Division Bench has observed in paragraph Nos. 6, 7, 8 and 9 of the judgment thus:
6. Counsel appearing on behalf of the Appellants has submitted that this Court may pass a similar order, in terms of the order passed by the Division Bench at Aurangabad on 20 July, 2011, remanding the proceedings back to the Tribunal. On the other hand, it was urged on behalf of the Revenue that - (1) The order of the CESTAT in Nasik Strips Pvt. Ltd. v. Commissioner of Central Excise - 2011(263) E.L.T. 606 : 2010 Indlaw CESTAT 1279 and Mithulal Gupta Bhavshakti Steelmines Pvt. Ltd. v. Commissioner of Central Excise and Customs, Nasik Appeal Nos. E 676 and 677 of 2009, with Stay Applications No. E/Stay-977 and 978 of 2009, it distinguishable; (ii) Before the CESTAT reliance was placed on the judgment of the Supreme Court in
7. We have considered the judgment of the Aurangabad Bench dated 20 July, 2011. Before the Aurangabad Bench counsel for the assessee had pointed out certain decisions of the CESTAT where full waiver of deposit had been granted and it was his contention that the facts were similar. Moreover, it was sought to be urged that this Court has laid down that once the Tribunal has granted a full waiver in similar cases, it would not be proper to take a different view in other cases. The Division Bench merely held that the matter deserves to be remanded back to the Tribunal as in the matters before it are similar. The Tribunal was directed to take into consideration its earlier order in Nasik Strips Pvt. Ltd. - 2010 Indlaw CESTAT 1279 and Mithulal Gupta Bhavshakti Steelmines Pvt. Ltd. (supra).
8. With respect, we are unable to agree with the judgment of the Division Bench at Aurangabad dated 20 July, 2011 in SRJ Peety Steels Pvt. Ltd. v. Union of India (First Appeal 706 of 2011 with C.A. No. 5013 of 2011). This is not a case where the Tribunal had not taken into account its earlier decision in Nasik Strips Pvt. Ltd. - 2010 Indlaw CESTAT 1279. As a matter of fact, the Tribunal in the course of its impugned decision did refer to the earlier decision in Nasik Strips Pvt. Ltd. - 2010 Indlaw CESTAT 1279, but observed as follows:
Again, the Apex Court''s order in M/s. Bhagwati Ispat case lends great support to the Revenue in the present batch of appeals. We may also point out that Bhagwati Ispat case was not brought to our notice when the stay order was passed on 9-7-2010 in the case of Nashik Strips Ltd. (supra).
9. The Division Bench of this Court has not come to any conclusion to the contrary. The order of the Division Bench does not contain any finding that the decision in Nasik Strips was on similar facts. All that the Division Bench recorded was the submission of counsel for the assessee. On that basis, without entering any finding, even prima facie, at this stage the Division Bench remanded the matter back to the Tribunal. Ordinarily in a matter such as the present, a Division Bench of this Court would be inclined to follow the view taken by a coordinate Bench particularly at the interim stage on an application for waiver of pre-deposit. We are, however, not inclined to do so for the significant and as we have noted earlier in the table extracted herein above the total amount of duty in each of the cases is Rs. 11.51 Crores, Rs. 7.99 Crores, Rs. 1.01 Crores, Rs, 2.65 Crores, Rs. 1.97 Crores and Rs. 2.02 Crores respectively. Penalties in the like amount have been demanded. Ordinarily, appeals against the decisions of the CESTAT are numbered in this Court not as First Appeals, but as Central Excise Appeals and are placed before the Tax Bench. We find ourselves unable to accept the view of the Division Bench at Aurangabad.
6. Larger Bench judgment in the aforesaid matter reported in 2013(29) S.T.R. 625 (Bom.) = 2012(280) E.L.T. 343 (Bom.) is also referred. The Larger Bench of this Court confirmed the view adopted by the Division Bench and has observed in paragraph No. 28 of the judgment thus:
28. For all the aforesaid reasons, we answer the question referred to us by holding that the Aurangabad Bench in the case of M/s. SRJ Peety Steels Pvt. Ltd. (supra) was not justified in remanding the proceedings back to the CESTAT for reconsideration without expressing its view as to the validity of the impugned order dated 28th February, 2011 or the validity of the orders of the CESTAT in the case of Nasik Strips Pvt. Ltd. (supra) and Mithulal Gupta (supra). Accordingly, we hold that the decision of the Aurangabad Bench cannot be treated as precedent and the Division Bench of this Court would be within its power to dispose of the appeals on its own merits without being bound by the decision of the Aurangabad Bench in the case of M/s. SRJ Peety Steels Pvt. Ltd. (supra).
7. In view of decision rendered by the Larger Bench confirming earlier judgment of the Division Bench in the matter of Orange City Alloys Pvt. Ltd. (supra), we are of the view that appellant is liable to comply the directions issued by the appellate Tribunal regarding deposit of Service Tax amount. In the facts and circumstances of the case, we deem it appropriate to grant further opportunity to appellant to deposit balance amount with appellate Tribunal and further direct the Tribunal to take decision in the matter on its own merit and in accordance with provisions of law. Appellant shall deposit balance amount excluding the amount already deposited with the Tribunal, within a period of eight weeks from today. On making deposit of amount, the appellate Tribunal shall take up the appeal for consideration and decide the same on its own merit and in accordance with provisions of law. Impugned order passed by the Tribunal on 17-7-2012 thereby dismissing the appeal is quashed and set aside. In the facts and circumstances of the case, there shall be no order as to costs.
8. Pending civil application, if any, does not survive and stands disposed of.
