2011 (7) TMI 203 - AT - Service Tax

Waiver of pre deposit - When the time given for pre-deposit ran out, the Commissioner (Appeals) dismissed the assessee s appeal on the ground of non-deposit without going into the merits of the case - The appellant claims that the entire amount of service tax with interest was paid in the wake of audit objections, barring an amount of Rs 2,362/- and, in support of this claim, the appellant has filed a reconciliation statement accompanied by the Chartered Accountant s certificate - assessee had not built up such a case, nor had they filed any reconciliation statement or certificate of their Chartered Accountant - Appeal is allowed by way of remand

Issues:
- Non-compliance with Section 35F of the Central Excise Act
- Dismissal of appeal by the Appellate Commissioner
- Impugned demand of service tax under Manpower Supply Service and Maintenance & Repair Service
- Claim of excess service tax payment and adjustment against deficiency
- Lack of case presentation before the original authority

Non-compliance with Section 35F of the Central Excise Act:
The appeal was directed against the Appellate Commissioner's order dismissing the assessee's appeal due to non-compliance with Section 35F of the Central Excise Act. The original authority confirmed a demand, including service tax and education cess, with penalties imposed under Sections 78 and 77 of the Act. The appellate authority directed the appellant to pre-deposit a specific amount, which was not done, leading to the dismissal of the appeal based on non-deposit without considering the case's merits.

Dismissal of appeal by the Appellate Commissioner:
Upon examining the records, it was noted that the impugned demand of service tax pertained to Manpower Supply Service and Maintenance & Repair Service for a specific period. The appellant claimed to have paid the entire service tax amount, except for a small sum, based on audit objections. The appellant provided a reconciliation statement and a Chartered Accountant's certificate to support this claim. However, the case was not adequately presented before the original authority, and no reconciliation statement or certificate was submitted at that stage.

Impugned demand of service tax under Manpower Supply Service and Maintenance & Repair Service:
The Tribunal found that the appellant had not presented their case adequately before the original authority and had not submitted the necessary documents to support their claim of excess service tax payment and adjustment against any deficiency. Therefore, the Tribunal set aside the lower authorities' orders and allowed the appeal by remanding the case to the original authority for fresh adjudication. The original authority was instructed to consider the reconciliation statement and the Chartered Accountant's certificate and provide the appellant with a reasonable opportunity to be heard.

Claim of excess service tax payment and adjustment against deficiency:
The appellant claimed that they had paid the excess service tax amount based on an internal audit report, which needed to be adjusted against any deficiency arising from another audit report. The Tribunal acknowledged the appellant's claim but emphasized the importance of presenting the case adequately before the authorities and submitting the required documentation to support such claims.

Lack of case presentation before the original authority:
In light of the insufficient presentation of the case before the original authority and the absence of necessary documents, the Tribunal decided to remit the case back to the original authority for de novo adjudication. This decision aimed to ensure a fair consideration of the appellant's claims and the opportunity for a proper hearing. Additionally, the stay application was also disposed of as part of the overall decision.

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