2011 (9) TMI 110 - AT - Service Tax

Waiver of pre-deposit - Find that the learned Commissioner (Appeals) has rejected the appeal for non compliance of the stay order, but Tax challan at page No.66 of appeal Memoranda indicates clearly that amount has been deposited as per the stay order passed by the learned Commissioner (Appeals) - If that be so, the rejection of the appeal for non compliance seems to be incorrect - Hence, appellant is directed to produce the original copy of the challan before the learned Commissioner (Appeals), who after ascertaining compliance hear the appellants on the merits of the case and pass an order - Appeal is allowed by way of remand.

Summary

Issues:
Stay petition for waiver of pre-deposit of service tax confirmed by adjudicating authority, dismissal of appeal by first appellate authority for non-compliance of stay order, remand of the matter back to the first appellate authority for further consideration.

Analysis:

1. Stay Petition for Waiver of Pre-Deposit:
The stay petition was filed seeking the waiver of pre-deposit of service tax amounts confirmed by the adjudicating authority, along with interest and penalties under relevant sections of the Finance Act, 1994. The Tribunal noted that after hearing both sides, it found the appeal itself could be disposed of since the issue was limited in scope. The Tribunal allowed the applications for waiver of pre-deposit and proceeded to take up the appeal for disposal.

2. Dismissal of Appeal by First Appellate Authority:
The learned counsel highlighted that the first appellate authority had dismissed the appeal due to non-compliance with the stay order, which required the appellant to deposit 50% of the service tax liability confirmed by the adjudicating authority. It was brought to the Tribunal's attention that although the appellant had deposited the amount within the specified time, it was inadvertently submitted belatedly to the office of the learned Commissioner (Appeals). The Tribunal, upon perusal of records, observed that the rejection of the appeal for non-compliance seemed incorrect as the tax challan indicated compliance with the stay order. Therefore, without expressing any opinion on the case's merits, the Tribunal directed the appellant to produce the original copy of the challan before the learned Commissioner (Appeals) for verification of compliance and further proceedings on the merits of the case.

3. Remand of the Matter to First Appellate Authority:
In light of the above findings, the Tribunal allowed the appeal by way of remand, directing the first appellate authority to re-examine the matter after verifying the compliance with the stay order. The Tribunal emphasized the importance of the first appellate authority following the principles of natural justice before reaching any conclusion on the case. Consequently, the stay petition was also disposed of as part of the remand decision.

In conclusion, the Tribunal's judgment addressed the issues raised regarding the waiver of pre-deposit, the dismissal of the appeal by the first appellate authority, and the subsequent remand of the matter for further consideration, ensuring procedural fairness and compliance with the stay order requirements.