M/S. Vinayak Infrastructure vs Commr. Of C. Ex. & Service Tax-Bbsr-Ii
- Case No.Service Tax Appeal No. ST/70845/2013
Ratio decidendi
The rule this decision rests on
Where the Commissioner (Appeals) has dismissed an appeal for non-compliance with the mandatory pre-deposit requirement under Section 35F of the Central Excise Act, 1944 (as applicable to service tax matters), without deciding the appeal on merits, the Tribunal cannot decide the merits of the matter in the first instance; the appropriate course is to remand the matter to the Commissioner (Appeals) for fresh consideration on merits, conditional upon the appellant depositing a reduced percentage of the confirmed service tax within a fixed period and reporting compliance to the Commissioner (Appeals), who shall then proceed without insisting on any further pre-deposit.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of the Order-in-Appeal No. 21/ST/BBSR-II/2013 dated- 02,04.2013 passed by the Commissioner (Appeals), Central Excise, Customs & Service Tax, BBSR)
For approval and signature of:
DR.D.M. MISRA, HONBLE JUDICIAL MEMBER DR. I.P. LAL, HONBLE TECHNICAL MEMBER
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1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ?
3. Whether Their Lordships wish to see the fair copy : of the Order? 4. Whether Order is to be circulated to the Departmental : Authorities ?
M/s. Vinayak Infrastructure
APPELLANT(S) VERSUS Commr. of C. Ex. & Service Tax-BBSR-II RESPONDENT(S)
APPEARANCE
NONE FOR APPELLANT(S) Sri K. Chowdhuri, Supdt. (A.R. ) FOR THE RESPONDENT(S)
CORAM: DR.D.M. MISRA, HONBLE JUDICIAL MEMBER DR. I.P. LAL, HONBLE TECHNICAL MEMBER
DATE OF HEARING & DECISION : 14/07/2015
ORDER NO.__FO/A/75386/2015 Per DR. D.M. MISRA
None present for the applicant . 2. Heard the Ld. A.R. for the Revenue.
3. This is an application seeking waiver of pre-deposit of Service Tax of Rs.3.67 Lakhs and equal amount of penalty imposed under Section 78 of the Finance Act, 1994.
4. Ld. A.R. for the Revenue brought to our notice that the Ld. Commissioner (Appeals) has not decided the issue on merit but dismissed the appeal on the ground that the applicants have failed to deposit the directed amount of Rs.2.00 Lakhs, resulting into non-compliance with the Provisions of Section 35F of CEA, 1944, as applicable to service tax matters. He submits that since the appeal has been dismissed for non-compliance with Section 35F of CEA, 1944 by the Ld. Commissioner (Appeal), hence as is laid down by Honble Supreme Court in the case of Commr. of C. Ex., Chandigarh Vs. M/s. Smithkline Beecham Co. Health C. Ltd.-2003 (157) E.L.T. 497 (S.C.) the matter cannot be decided on merit by this Tribunal. In the interest of justice and keeping in view the interest of Revenue, it would be appropriate to direct the appellant to deposit 10% of the Service Tax confirmed within a period of Eight Weeks from the date of communication of this order and report compliance directly to the Ld. Commissioner (Appeals). The Ld. Commissioner (Appeals) after recording compliance would proceed with the matter afresh without insisting for further pre-deposit. It is needless to mention that reasonable opportunity of hearing be granted to the appellant. All issues are kept open. Appeal is allowed by way of remand to Commissioner (Appeals). S.P. disposed off.
(Pronounced and dictated in the open Court) Sd/- 23/07/2015 Sd/- 17/07/15 (I.P.LAL) (D.M.MISRA) MEMBER (TECHNICAL) MEMBER (JUDICIAL) k.b/-
Service Tax Appeal No. ST/70845/2013
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