Filtech vs Commissioner Of Central Excise, ...
- CitationAppeal No. 155/2013
Ratio decidendi
The rule this decision rests on
The Tribunal is entitled to dispense with a pre-deposit condition and to set aside an order dismissing an appeal for non-compliance with it, where the appellant has prima facie shown that the tax was paid and credit taken, and the dispute concerns only who should have paid the tax; in such circumstances the matter is remanded to the first appellate authority to decide afresh on merits without insisting on any pre-deposit.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. 155/2013 dated 29/03/2013 passed by the Commissioner of Central Excise, Bangalore-I ( Appeals)]
For approval and signature:
HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes
Filtech C-284, 7th Cross, Peenya 1 Stage, Peenya Industrial Estate, Bangalore - 58 Karnataka Appellant(s)
Versus Commissioner of Central Excise, Customs and Service Tax Bangalore-I Post Box No. 5400, CR Buildings, Bangalore 560 001 Karnataka Respondent(s)
Appearance:
Mr. M.S. Srinivasa & Mr. H.Y. Raju, Advocates #999/30, 'Nithya Mansion', 1st Floor, 1st Main, 4th Cross, Vijayanagar, Bangalore - 560 040 Karnataka For the Appellant
Mr. S. Teli, AR For the Respondent
Date of Hearing: 02/03/2015 Date of Decision: 02/03/2015 CORAM:
HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER
Final Order No. 20482 / 2015
Per: B.S.V. MURTHY
The appeal has been dismissed for non-compliance with the direction to deposit Rs. 3,20,000/- (Rupees Three Lakhs Twenty Thousand only) which is equal to the entire amount of cenvat credit demanded from the appellant.
2. Learned counsel submits that the demand has arisen because of a view taken by the Revenue that the service tax on GTA service should have been paid by the appellant through a challan and credit should have been taken on that basis whereas the service tax in respect of GTA service received by the appellant was paid by the service provider. On this ground credit has been denied. Further he also submits that in every case the service received is not at all GTA service and he shows some examples wherein bills have been issued by courier service providers and prima facie it appears that service is not provided by a GTA. Prima facie it appears that the tax has been paid and credit has been taken and the only dispute who should have paid the tax. Moreover in respect of a portion of the demand proceedings have taken place without proper appreciation of the facts and documents which in my opinion should have been done. I would not like to go in detail. At this stage, it is felt that Commissioner (Appeals) should consider the appeal without insisting on any pre-deposit. Accordingly the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) with a request to decide the matter afresh after giving reasonable opportunity to the appellant to present their case and pass an order on merit without insisting on any pre-deposit.
(Order pronounced in open court)
(B.S.V. MURTHY) TECHNICAL MEMBER
iss
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