2012 (6) TMI 487 - AT - Service Tax

Waiver of predeposit - On the one hand, Form No.ST-4 was used by the party and, on the other hand, Section 35 of the Central Excise Act was mentioned in the cause title of the appeal. The COD application filed before the Commissioner (Appeals) did not make any mention of sub-section 3 of Section 85 of the Finance Act, 1994 Held that - appellant was obviously confused as to what provisions of law were to be selectively invoked. Matter remanded to Commissioner (Appeals) to reconsider the COD application filed by the party.

Summary

Issues:
1. Appeal for waiver of predeposit and stay of recovery.
2. Dismissal of appeal by the Commissioner (Appeals) due to delay.
3. Interpretation of provisions under Section 85 of the Finance Act, 1994.
4. Confusion regarding the provisions of law invoked in the appeal.

Analysis:
1. The appellant filed an application seeking waiver of predeposit and stay of recovery, which was considered by the Tribunal. The Tribunal decided to summarily dispose of the appeal after dispensing with predeposit. The original demand by the Assistant Commissioner was confirmed under the Central Excise Act, along with interest and a penalty. The party's appeal to the Commissioner (Appeals) was dismissed due to non-compliance with Section 35 of the Central Excise Act, leading to the Tribunal's intervention.

2. The main issue revolved around the dismissal of the appeal by the Commissioner (Appeals) based on a delay in filing. The appellant argued that their appeal was filed under Section 85 of the Finance Act, 1994, and the delay should have been considered under the relevant proviso. The Commissioner (Appeals) rejected the appeal and the condonation of delay application, citing non-compliance with Section 35 of the Central Excise Act. The Tribunal found that the appellant was confused about the provisions of law to be invoked, leading to a remand for reconsideration of the condonation application.

3. The appellant contended that their appeal was filed under Section 85 of the Finance Act, 1994, and the delay should have been condoned under the proviso to sub-section 3 of Section 85. The Counsel referenced a relevant case law to support their argument. However, the Departmental Representative argued that the appeal was actually filed under Section 35 of the Central Excise Act, justifying the invocation of limitation provisions under that section.

4. The Tribunal observed that there was confusion regarding the provisions of law invoked in the appeal. The appellant used Form No.ST-4 for the appeal but mentioned Section 35 of the Central Excise Act in the cause title. The condonation of delay application did not refer to the specific provisions of the Finance Act, leading to the Tribunal's conclusion that there was confusion on the appellant's part. The Tribunal decided to remand the matter for fresh consideration by the Commissioner (Appeals) to clarify the confusion and provide a reasonable opportunity for the party to be heard.

This detailed analysis of the judgment highlights the key issues, arguments presented by both parties, and the Tribunal's decision to remand the matter for further consideration, emphasizing the importance of clarity in invoking relevant legal provisions.