2013 (7) TMI 591 - AT - Service Tax

Issue of taxability - enhancement of penalty - Held that - It would be proper for the Commissioner (A) to dispense with pre-deposit and hear the appeal without insisting the same - so that the appellant shall not be deprived of the process of justice - It is not warranted to examine merit of the appeal since the appellant has already lost his appeal on the maintainability - considering the decisions of the Tribunal Nagarjuna Construction Co. Ltd. vs. CCE(2010 (5) TMI 232 - CESTAT, BANGALORE) remanded back to Commissioner (Appeals) decided in favour of assessee.

Summary

Issues:
- Failure to make pre-deposit leading to dismissal of appeal
- Appellant's contention of fair chance of success based on Tribunal orders
- Revenue's appeal for enhancement of penalty
- Disagreement on issues decided in cited decisions
- Remand of matters to Commissioner (Appeals) for hearing on merit

Analysis:
The judgment addresses the issue of the appellant's appeal being dismissed due to failure to make a pre-deposit as ordered by the appellate authority. The appellant argues that following the ratio of certain Tribunal orders would result in a fair chance of success. Additionally, the Revenue had appealed for the enhancement of penalty. However, the JCDR points out that the issues decided in the cited decisions differ from the present appeals. Despite this, the judgment emphasizes that it is not necessary to examine the merit of the appeal as the appellant has already lost on the maintainability issue. Consequently, the judgment suggests that the Commissioner (Appeals) should dispense with the pre-deposit requirement and hear the appeal to ensure the appellant's access to justice. As a result, the decision calls for the remand of both matters to the Commissioner (Appeals) for a hearing on the merit, allowing the appellant to present arguments on the raised issues and applicable laws as per the memorandum of appeal and citations relied upon.

In conclusion, the judgment disposes of both stay applications and remands the appeals to the Commissioner (Appeals) for further proceedings, emphasizing the importance of providing the appellant with the opportunity to argue the matters on merit and address the issues raised in the appeal and the citations relied upon.