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Judgment
The appeal as originally filed was directed against the order dated 11th May, 2015 passed by the Customs, Excise & Service Tax Appellate (''CESTAT'') requiring the appellant-assessee to make a pre-deposit of Rs. 78 lakhs for considering its appeal against an Order-in-Original dated 28th November, 2013 of the Commissioner of Customs (CC). Subsequently, by an order dated 2nd July, 2015, the CESTAT dismissed the appeal itself on account of the failure of the appellant to make the pre-deposit within the time granted. The said order dated 2nd July, 2015 is also being challenged by the appellant and an amended memo of appeal has been filed for that purpose is taken on record.
It is seen that the CC by the order dated 28th November, 2013 held that the best judgment assessment under Section 72 of the Finance Act was invokable against the appellant for the purposes of assessing the service tax for the period 2011-12. The CC proceeded to confirm the demand of service tax of Rs. 1,55,71,202/- apart from penalty. One factor that appears to have weighed with the CC as well as the CESTAT was the failure by the appellant to furnish complete particulars despite repeated opportunities.
It is not in dispute that the returns in Form ST-3 filed online by the appellant was rejected by the computer on the ground of some error and was not re-filed till after a show cause notice was issued to the appellant on 18th October, 2012.
The Court finds that the Appellant has raised serious objections against the order of the CC on merits. In particular, the appellant is aggrieved by the manner in which inferences were drawn by the CC with respect to the details furnished by it. The Court is of the view that contention of the assessee that it did furnish the full particulars requires a detailed examination on merits.
Further, it is stated that the annual turnover of the appellant was around Rs. 4 crores for the Assessment Year (''AY'') 2011-12. Keeping in view these factors, the Court is of the view that a pre-deposit of Rs. 78 lakhs as ordered by the CESTAT is harsh and in the interests of justice a sum of Rs. 25 lakhs should instead be directed to be paid by the appellant as pre-deposit.
The impugned order dated 11th May, 2015 and the consequential impugned order dated 2nd July, 2015 of the CESTAT are hereby set aside and the appeal of the appellant is restored to the file of the CESTAT for disposal on merits subject to the appellant depositing a sum of Rs. 25 lakhs on or before 31st August, 2015. It is made clear that if there is any default in making the above deposit by 31st August, 2015, the aforesaid impugned orders of the CESTAT would stand revived without any further reference to this Court. The appeal and the pending applications are disposed of.