The right of appeal is a statutory right subject to conditions; non-compliance with a pre-deposit mandate under Section 35F justifies dismissal, and prospective amendments to such mandates cannot retrospectively validate a previously dismissed appeal.

[ORDER PER: ANGAD PRASAD]

The present appeal is directed against Order-in-Appeal No. 37/2014 (H-II) ST dated 23.07.2014 passed by the Commissioner (Appeals), whereby, the appeal filed by the appellant came to be dismissed for non- compliance with the order-in stay petition dated 13.06.2014 directing pre-deposit of 50% of the adjudged Service Tax demand.

2. The fact, in brief, is that the appellant M/s ECI-BJCL JV, executed EPC/ works contract relating to construction of dams, reservoirs, canals and allied structures of the Government of Andhra Pradesh during the period from June, 2007 to March, 2012.

3. The Show Cause Notice dated 23.10.2012 demanded Service Tax amounting to Rs. 43,86,471/- under Works Contract Service.

4. The Adjudicating Authority confirmed the demand vide Order-in- Original dated 09.01.2014. Being aggrieved, the appellant preferred an appeal before Commissioner (Appeals), along with an application for wavier of pre-deposit.

5. The records reveal that the Commissioner (Appeals), fixed the stay application for hearing on 12.06.2014. Before the scheduled date, the appellant sought adjournment stating that certain accounts were under finalization.

6. The Commissioner (Appeals), however, rejected the request and by order-in-stay petition dated 13.06.2014 directed the appellant to deposit 50% of the Service Tax demand.

7. Subsequently, the appellant address another representation dated 18.06.2014 requesting the Commissioner (Appeals), to pass a speaking order after considering the legal submissions and judicial precedents relied upon by the appellant.

8. Without granting any further hearing and without the appellant complying with the condition of pre-deposit, the Commissioner (Appeals), pass the impugned Order-in-Appeal dated 23.07.2014, dismissing the appeal for non-compliance with the stay order.

9. The Learned Counsel submits that the appeal has been dismissed without adjudicating the merits of the dispute. It is contended that Commissioner (Appeals), failed to examine whether the appellant had a strong prima facie case in view of the Larger Bench decision in Lanco Infratech Ltd., Vs Commissioner of Central Excise, Belapur , [2011 (271) E.L.T. 75 (Tri.-Mumbai)], which held that construction of dams, canals and EPC projects of such nature are not liable to Service Tax.

10. It is further argued that while deciding the stay application, the Commissioner (Appeals), did not consider the well-settled parameters governing grant of waiver, namely:

(i) Existence of a prima facie case;

(ii) Balance of convenience; and

(iii) Financial hardship.

11. According to the appellant, the dismissal of appeal merely for non- compliance with the pre-deposit order, without deciding the appeal on merits and without considering legal submissions violates the principles of natural justice. Reliance is place upon Badve Helmets India Pvt Ltd., Vs CCE, Aurangabad , 2012 (28) STR 403 (Tri-Mumbai)], DSM Sugar Vs Commissioner of Central Excise Appeals [2009 (248) ELT 49 (All)], Pennar Industries Ltd., Vs State of A.P. [2015 (322) ELT 25 (SC)], Amber Anuruddha Mufti Vs Commissioner of Customs (Appeals) [2013 (295) ELT 509 (Bom.)], Surya Pharmaceutical Ltd., Vs Union of India [2014 (5) TMI 24- Punjab and Harayana High Court], B. Rama Rao & Company Vs Commissioner of Central Excise, Hyderabad [2012 (11) TMI 44 – CESTAT, Bangalore] & Thermopads Pvt Ltd., Vs The Commissioner of Central Excise,