2011 (10) TMI 257 - AT - Service Tax

Appeal - Non compliance of provision of 35F Commissioner (Appeals) dismissed appeal - After pre deposit of 5,00,000 appeal was admitted.

Summary

Issues:
- Application for waiver of pre-deposit of Service Tax
- Appeal against order for non-compliance with Section 35F of the Act
- Classification of the applicant as an individual or a commercial construction entity

Analysis:
1. The applicant filed an application for waiver of pre-deposit of Service Tax, interest, and penalties amounting to Rs.9,47,849. The demand was confirmed due to the provision of Commercial and Industrial Construction Services. The Commissioner (Appeals) directed the applicant to deposit the mentioned amount for the appeal hearing, which was dismissed for non-compliance with Section 35F of the Act.

2. The contention raised was regarding the classification of the applicant as an individual and not a commercial construction entity. The Tribunal noted that the applicant, M/s. B.R. Yadav, undertook construction services like brickwork, masonry work, and construction of various structures, indicating commercial construction activities. Thus, the Tribunal directed the deposit of Rs.5,00,000 within six weeks for partial waiver of the remaining amount.

3. The Tribunal observed that the Commissioner (Appeals) dismissed the appeal solely based on non-compliance with Section 35F, without deciding on the merit of the case. The impugned order was set aside, and the matter was remanded back to the Commissioner (Appeals) for a decision on merit after the deposit of Rs. 5 lakhs by the applicant and providing an opportunity for a hearing.

4. In conclusion, the appeal was disposed of with the directive to deposit Rs.5,00,000 within the specified period for partial waiver of the pre-deposit amount, allowing the recovery of the remaining service tax, interest, and penalty to be stayed during the appeal process. The case highlighted the importance of compliance with statutory provisions and the need for a thorough examination of evidence before reaching a decision on the merits of the appeal.