Commissioner of Central Excise, Mangalore vs Hml Agencies (P) Ltd

The revenue has preferred this writ petition for a writ of certiorari quashing the Order No. 44/2009, dated 21-1-2009 [2009 (14) S.T.R. 626 (Tri.-Bang.)] passed in the Customs, Excise & Service Tax Appellate Tribunal [for short ''CESTAT''] as per Annexure-A. The said order is passed by the CESTAT in Appeal No. ST/166/2008 i.e., the appeal preferred by the assessee against the order of Commissioner of Central Excise levying a sum of Rs. 6,59,58,799/- towards Service tax u/s 73(1) of the Finance Act, 1994 and also the penalty. In the said appeal, an application was filed for waiver of pre-deposit. The revenue objected to the said prayer. After hearing both the parties, the CESTAT by a considered order, held prima facie case was satisfied that the entire payment was barred by time. Therefore, they proceeded to order complete waiver of pre-deposit amount demanded in the impugned order. They made it clear that the stay order will continue in force even after 180 days and no coercive measure should be taken by the revenue to recover the amount till the disposal of the appeal.

As the revenue preferred this writ petition against the order and this court on 2-6-2009 admitted the writ petition and granted interim order of stay of the said order, the appeal before the appellate authority is not taken up for consideration and disposed of.

We have heard learned counsel for both the parties.

The Tribunal has the power and discretion to grant complete waiver of pre-deposit amount. The Tribunal is of the view that the entire payment is barred by law of limitation. After considering rival contentions, by a considered order, it has exercised the discretion which is vested in it under law. As is clear from the statutory provisions, when complete waiver is granted, there is an obligation cast on the Tribunal to: dispose of the appeal within 180 days. By this time, appeal would have been disposed of but for stay order granted by this court staying the impugned order. We are satisfied from the material on record that no case for interference with the impugned order is made out. If the entire claim is barred by time and if the assessee is made to deposit the entire amount, certainly it would cause great hardship. The proper course would be to remit the matter to the Tribunal with a direction to dispose of the appeal within four months from the date of receipt of copy of this order. Under these circumstances, we pass the following order :

(a) Writ petition is rejected.

(b) The interim order granted by this court is vacated. The entire matter is remitted back to the Tribunal for being considered on merits and in accordance with law within four months from the date of receipt of copy of this order. The assessee shall co-operate before the Tribunal in disposal of the appeal. No costs.