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2013 (6) TMI 512 - AT - Service TaxDemand of service tax - stay - commissioner (appeals) dismissed the appeal for non compliance of order of pre-deposit - Held that - Keeping in mind the facts and circumstances of the case, we direct the appellant to deposit an amount of Rs.5 lakhs (Rupees Five Lakhs only) within a period of eight weeks from today and report compliance before the first appellate authority on 25.02.2013. The first appellate authority will ascertain that the appellant has pre-deposited the amount and on such ascertainment, will restore the appeal to its original number in his records and come to conclusion on the merits of the case, after following the principles of natural justice.
Issues:
1. Stay petition for waiver of pre-deposit of Service Tax liability confirmed by lower authorities. 2. Dismissal of appeal by first appellate authority for non-compliance of pre-deposit. 3. Discharge of Service Tax liability on commission paid under Business Auxiliary Service. 4. Consideration of provisions of Section 66A of Finance Act, 1994. 5. Directions for deposit amount and compliance before first appellate authority. 6. Restoration of appeal for consideration on merits. Issue 1: Stay petition for waiver of pre-deposit of Service Tax liability confirmed by lower authorities. The appellant filed a Stay Petition seeking waiver of pre-deposit of Service Tax liability confirmed by lower authorities for the period from 01.01.2005 to 30.11.2009. The demand was raised under the category of Business Auxiliary Service and Goods Transport Agency Service. Issue 2: Dismissal of appeal by first appellate authority for non-compliance of pre-deposit. The first appellate authority dismissed the appeal filed by the appellant solely due to non-compliance with the pre-deposit order. The Tribunal noted the absence of any findings on the merits of the case by the first appellate authority, leading to the decision to reconsider the matter. Issue 3: Discharge of Service Tax liability on commission paid under Business Auxiliary Service. The Tribunal observed that the issue of discharging Service Tax liability on the commission paid by the appellant under the category of Business Auxiliary Service could potentially fall under the provisions of Section 66A of the Finance Act, 1994 post 18.04.2006. The Tribunal directed the first appellate authority to address the points raised by the appellant and make a decision based on merit. Issue 4: Consideration of provisions of Section 66A of Finance Act, 1994. The Tribunal emphasized the need for the first appellate authority to thoroughly examine the points raised by the appellant, especially concerning Section 66A of the Finance Act, 1994, as the impugned order was devoid of any merit-based decision. Issue 5: Directions for deposit amount and compliance before first appellate authority. In light of the circumstances, the Tribunal directed the appellant to deposit an amount of Rs.5 lakhs within eight weeks and report compliance to the first appellate authority by a specified date. The first appellate authority was instructed to verify the deposit and proceed with the appeal based on the merits and principles of natural justice. Issue 6: Restoration of appeal for consideration on merits. The Stay Petition was disposed of, and the appeal was taken up for disposal, with the Tribunal outlining the conditions for the appellant to follow regarding the deposit and compliance. The first appellate authority was tasked with restoring the appeal to its original status and making a decision based on the merits of the case. This judgment from the Appellate Tribunal CESTAT AHMEDABAD addressed various issues related to a Stay Petition for waiver of pre-deposit of Service Tax liability, dismissal of appeal due to non-compliance, and the discharge of Service Tax liability under Business Auxiliary Service. The Tribunal emphasized the need for a merit-based decision by the first appellate authority, considering the provisions of the Finance Act, 1994. The appellant was directed to deposit a specified amount and comply with the instructions before the first appellate authority for a thorough consideration of the appeal on its merits.
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