2014 (9) TMI 967 - HC - Service Tax

Waiver of pre deposit - Whether in the facts of the case and in the interest of justice the appellant is entitled to an opportunity to prosecute the application for waiver of deposit and also the appeal filed before the Tribunal - Held that - If a party remains absent before a Tribunal or a Court of Law the Court cannot be found at fault in dismissing the proceedings filed by the party in the absence of prosecution. The Tribunal waited for the appellant on five dates of hearing but the appellant failed to remain present. We therefore do not find any fault in the order of the Tribunal rejecting the application filed by the appellant in default. - Impugned order ot be set aside on the ground that appellant deposits 25% of the amount payable by the appellant before the Tribunal within a period of four weeks - Decided conditionally in favour of assessee.

Summary

Issues:
- Challenge to order of Customs, Excise and Service Tax Appellate Tribunal for waiver of dues
- Appellant's liability for penalty and interest on Service Tax evasion
- Failure to comply with Tribunal's directions
- Appellant's absence during proceedings
- Application for waiver of pre-deposit dismissed
- Justification for dismissal by Tribunal
- Opportunity for appellant to prosecute the matter
- Conditions imposed on appellant for setting aside Tribunal's orders

Analysis:

The appellant challenged the Customs, Excise and Service Tax Appellate Tribunal's order dismissing the application for waiver of dues and directing the deposit of interest and penalty within four weeks. The appellant, a manpower recruitment service provider, claimed no Service Tax was due but paid it in 2008 after a notice in 2010 for evasion from 2005-2007. The Tribunal dismissed the waiver application due to the appellant's absence, leading to the appeal's dismissal for non-compliance.

The appellant argued against the dismissal, citing a Gujarat High Court case and lack of intent to evade tax. The respondent supported the Tribunal's decision, highlighting the appellant's repeated absence and voluntary tax registration. The Court identified the key issue of granting the appellant an opportunity to prosecute the matter and determine if the appellant deserved leniency.

The Court acknowledged the Tribunal's dismissal due to the appellant's absence but noted the need to grant an opportunity with conditions. Despite the appellant's negligence and delayed appeal, the Court decided to set aside the Tribunal's orders on the condition that the appellant deposits 25% of the penalty within four weeks. The judgment partially favored the appellant based on the circumstances and interest of justice, emphasizing the need for compliance with the imposed condition.

In conclusion, the appeal was partly allowed, setting aside the Tribunal's orders subject to the appellant's compliance with the specified condition within the given timeframe. No costs were awarded in the matter.